Hamilton Hgts. Funding LLC v 147 W. 129 St. Apt. Inc.

Hamilton Hgts. Funding LLC v 147 W. 129 St. Apt. Inc. 2015 NY Slip Op 02046 Decided on March 17, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 17, 2015
Mazzarelli, J.P., Sweeny, Renwick, Feinman, Kapnick, JJ.
14236 116909/09

[*1] Hamilton Heights Funding LLC, as Assignee of People's United Bank, as Successor by Merger to Bank of Smithtown, Plaintiff-Respondent, —

v

147 W. 129 St. Apt. Inc., Defendant-Respondent, State of New York Department of Taxation and Finance, et al., Defendants, Kourosh Gouyghadosh, Nonparty Appellant.

Kourosh Gouyghadosh, appellant pro se.

Solomon & Tanenbaum, P.C., White Plains (Clifford M. Solomon of counsel), for Hamilton Heights Funding LLC, respondent.

Joseph E. Ruyack III, Chester, for 147 West 129th St. Apt. Inc., respondent.

Order, Supreme Court, New York County (Paul Wooten, J.), entered February 25, 2014, which vacated a prior foreclosure sale and directed that the subject property be re-sold at public foreclosure auction, unanimously affirmed, without costs.

There is no support in the record for appellant's contention that plaintiff waived appellant's default at the March 25, 2013 closing by agreeing to extend his time to close beyond March 25, 2013. The parties' agreement provided that it could not be modified orally, and the record discloses no written agreement to extend appellant's time to close beyond March 25, 2013 (see General Obligations Law § 15-301; Nassau Beekman LLC v Ann/Nassau Realty LLC, 105 AD3d 33, 39 [1st Dept 2013]). Moreover, even if the agreement permitted oral modification, it [*2]would not avail appellant, since there is no evidence that, after appellant defaulted, plaintiff orally agreed to grant him an extension of time to close.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 17, 2015

CLERK