Essary v. Greenberg

Full title: SINA ESSARY et al., Appellants, v. FIL M. GREENBERG, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 16, 1987

Facts

In 1985 the plaintiff mortgagor, Pushpinder Singh Dhingra  (hereinafter Dhingra) and the plaintiff guarantor, Sina Essary, commenced this action, inter alia, for a judgment declaring a $1.2 million promissory note and mortgage instrument usurious and void. The defendant mortgagee, Fil M. Greenberg (hereinafter Greenberg) counterclaimed, inter alia, for foreclosure of that mortgage.

Paragraph 18 of the mortgage instrument reads: “Mortgagors shall have the right to substitute security of equal value to the premises covered by this mortgage with the consent of the mortgagee, which consent shall not be unreasonably withheld”.

In May 1987, approximately two years after the commencement of the suit and on the eve of trial, Dhingra offered $412,255.48 cash as substitute security of equal value to the premises covered by the mortgage under paragraph 18. Greenberg rejected the offer because the offer was made after default and, therefore, was “untimely”. Greenberg also maintained that the proposal did “not offer the security of equal value as is required by the governing documents”.

Issue

Decision

We agree with the Supreme Court’s denial of that branch of the plaintiffs’ motion which was to compel Greenberg to accept such payment pursuant to paragraph 18 of the mortgage. In light of Greenberg’s foreclosure action, it would be inequitable to grant the plaintiffs’ request for enforcement of paragraph 18 of the mortgage instrument where the plaintiffs have failed to perform their obligations arising out of that same instrument.

We also agree with the Supreme Court’s denial of that branch of the plaintiffs’ motion which was to compel Greenberg to deliver an assignment of the mortgage pursuant to Real Property Law § 275. The record supports the court’s finding that there is no evidence that the full amount of principal and interest due on the mortgage was ever tendered or paid as required by Real Property Law § 275. Mangano, J.P., Thompson, Kunzeman, and Harwood, JJ., concur.

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