Thomas C. Golombek v John A. Monahan

Golombek v Monahan 2003 NY Slip Op 20194 [2 AD3d 1405] December 31, 2003 Appellate Division, Fourth Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

Thomas C. Golombek, Respondent,
v
John A. Monahan, Appellant, et al., Defendant. (Appeal No. 2.)

—

Appeal from a judgment (denominated order and judgment) of Supreme Court, Erie County (Marshall, J.), entered January 6, 2003, upon a decision of the court in favor of plaintiff.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Contrary to the contentions of John A. Monahan (defendant), Supreme Court properly granted that part of plaintiff's motion seeking partial summary judgment against defendant on the issue of liability for amounts due upon his default in making payments under a mortgage modification agreement. Defendant contends that the agreement is not an enforceable promissory note because it does not contain a promise to pay. The mortgage modification agreement, however, did not modify defendant's express promise to pay under the original bond and mortgage. Defendant also contends that the parties entered into an oral agreement subsequent to the execution of the mortgage modification agreement that temporarily reduced the monthly mortgage payments until defendant's financial condition improved. The bond and mortgage, however, expressly provides that it cannot be modified "except in writing signed by [the] Mortgagee." That term was not modified by the mortgage modification agreement and thus remains in full force and effect (see FGH Realty Credit Corp. v VRD Realty Corp., 231 AD2d 489, 491 [1996], lv dismissed 89 NY2d 981 [1997]). Defendant's further contention that the rate of interest under the bond and mortgage is usurious because the amount loaned was less than the amount stated is "conclusory and unsubstantiated" (Tower Funding v Berry Realty, 302 AD2d 513, 515 [2003]) and otherwise without merit. Present—Pine, J.P., Wisner, Scudder, Gorski and Lawton, JJ.