Opinion
15192 Index No. 153164/20 Case No. 2021–01008
02-01-2022
Richard TULI, M.D., Plaintiff–Respondent, v. CABGRAM DEVELOPERS, LLC, Defendant–Appellant.
Stahl & Zelmanovitz, New York (Joseph Zelmanovitz of counsel), for appellant. Held & Hines, L.L.P., Brooklyn (Uri Nazryan and Marc J. Held of counsel), for respondent.
Stahl & Zelmanovitz, New York (Joseph Zelmanovitz of counsel), for appellant.
Held & Hines, L.L.P., Brooklyn (Uri Nazryan and Marc J. Held of counsel), for respondent.
Kern, J.P., Friedman, Singh, Scarpulla, Rodriguez, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about March 23, 2021, which granted plaintiff's motion for summary judgment on his first cause of action, for breach of contract in the amount of $465,000 plus interest, dismissed defendant's counterclaim, and granted plaintiff's motion to quash subpoenas, unanimously affirmed, without costs.
"When a condition of a mortgage loan commitment is not fulfilled through no fault of the purchasers, their performance is excused, as long as they acted in good faith" ( Lunning v. 10 Bleecker St. Owners Corp., 160 A.D.2d 178, 178, 553 N.Y.S.2d 148 [1st Dept. 1990], lv. denied 76 N.Y.2d 710, 563 N.Y.S.2d 61, 564 N.E.2d 671 [1990] ). Plaintiff's statements in affidavit form were sufficient to establish his prima facie case with respect to the question of his good faith pursuit of mortgage financing (see Harris v. City of New York, 147 A.D.2d 186, 189, 542 N.Y.S.2d 550 [1st Dept. 1989] ). He also provided the November 12, 2019 letter from the lender, which was addressed to his litigation counsel and attached to counsel's affirmation, which explained the May 30, 2019 pro-forma loan denial letter, noting that plaintiff was cooperative throughout the loan process and that his lack of sufficient income was the sole substantive reason for denial of the loan. That documentation was admissible ( Prudential Sec. v. Rovello, 262 A.D.2d 172, 692 N.Y.S.2d 67 [1st Dept. 1999] ; Eldon Group Am. v. Equiptex Indus. Prods. Corp., 236 A.D.2d 329, 654 N.Y.S.2d 23 [1st Dept. 1997] ). Plaintiff therefore provided documentary evidence establishing that he pursued the mortgage diligently and in good faith, and defendant failed to raise any issues of fact ( Buonocore v. Dubois, 16 A.D.3d 359, 359, 791 N.Y.S.2d 436 [1st Dept. 2005] ).
The motion to quash subpoenas was correctly granted, as they became moot.