NF Acquisitions, LLC v Oakdale Motorsports, Inc.

[*1] NF Acquisitions, LLC v Oakdale Motorsports, Inc. 2006 NY Slip Op 51455(U) [12 Misc 3d 1185(A)] Decided on April 13, 2006 Supreme Court, Suffolk County Loughlin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 13, 2006
Supreme Court, Suffolk County

NF Acquisitions, LLC, Plaintiff,

against

Oakdale Motorsports, Inc., CATHERINE MARTIN, DAVID MARTIN, BAYSHORE CYCLE & MARINE, INC., UNTIED STATES SMALL BUSINESS ADMINISTRATION, NABISCO, INC., HELEN ANDREOU, ISLIP TOWN SUPERVISOR, FORCHELLI CURTO SCHWARTZ MINEO CARLINO & COHEN, LLP, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, and LONG ISLAND DEVELOPMENT CORPORATION, Defendants.



02-26113



Berkman, Henoch, Peterson et al

Attorneys for Plaintiff

100 Garden City Plaza

Garden City, NY 11530

Cullen & Dykman et al

Attorneys for Defendant

100 Quentin Roosevelt Blvd.

Garden City, NY 11530-4850

Daniel J. Loughlin, J.

ORDERED, that the motion by Walter Illigasch for an order recalculating the amount due on the Judgment of Foreclosure and Sale is denied.

This is an action to foreclosure a mortgage on real property that had been owned by the defendant Oakdale Motorsports. During the pendency of this action, the movant purchased the property from the defendant subject to the mortgage. The movant alleges that his efforts to redeem the property were thwarted by the wrongful conduct of the plaintiff and the plaintiff's assignee. The movant seeks an order recalculating the amount due on the Judgment of Foreclosure and Sale. Specifically, the movant alleges that the plaintiff rejected his offer of tender in June 2003 and that the plaintiff has made improper demands in order to allow interest to accrue.

A valid tender requires an actual proffer of all mortgage arrears (see First Federal Savings Bank v Midura, 264 AD2d 407 [2d Dept 1999]; Home Savings Bank of America v Isaacson, 240 AD2d 633 [2d Dept 1997]). Once a default has been declared and a loan has been accelerated, a mortgagee is not required to accept less than the full repayment as demanded (see EMC Mortgage Corp v Stewart, 2 AD3d 772 [2d Dept 2003]; First Federal Savings Bank v Midura, supra; Home Savings Bank of America v Isaacson, supra). The burden of showing tender and refusal is on the party pleading the tender (see National Sav. Bank v Hartmann, 179 AD2d 76 [3d Dept 1992]).

Here, the record indicates that on June 2, 2003, the plaintiff's attorney advised the movant that the sum of $611,648.42 was necessary to satisfy the mortgage. The movant submits an affidavit asserting that he was prepared to tender certified sums but that the tender was rejected as insufficient. In support, the only evidence submitted by the movant are photocopies of certified checks totaling $610,000. The movant has offered no evidence that such sums were actually offered to the plaintiff and rejected (see Astoria Federal Savings & Loan v Trakansook, 18 AD3d 586 [2d Dept 2005]). Moreover, the checks were insufficient to satisfy the full amount demanded. Therefore, the movant has failed to demonstrate tender so as to support his claim that interest should be tolled from June 11, 2003 (cf. Sloane v Gape, 216 AD2d 285 [2d Dept 1995]).

The movant also contends that the plaintiff engaged in wrongful conduct by making improper demands in the pay off letters. In the June 2, 2003 letter, the plaintiff demanded a prepayment penalty based upon a provision in the note. The movant points out that the Referee and this Court later determined that the plaintiff was not entitled to the prepayment penalty. [*2]However, at the time of the pay off letters no judicial determination had been made. The movant could have paid the full amount to the plaintiff or paid the money into court and sought a ruling on the disputed amount. Instead, the movant waited until January 2006 to make the instant application. The movant also claims that the interest sought by the plaintiff was excessive. However, the loan documents specifically provide that the contract rate shall apply both before and after the entry of a judgment. Therefore, the plaintiff was entitled to the higher rate of interest (cf. Marine Mgt v Seco Mgt., 176 AD2d 252 [2d Dept 1991] affd 80 NY2d 886; Banque Nationale De Paris v 1567 Broadway Ownership Assoc., 248 AD2d 154 [1st Dept 1998]).

For the first time in reply, the movant contends that the plaintiff failed to prosecute this action in a timely manner. The plaintiff however has submitted a further reply which demonstrates that the plaintiff did not unreasonably delay in prosecuting the action. Under these circumstances, the movant has failed to submit sufficient evidence of wrongful conduct by the plaintiff. Accordingly, the motion is denied.

Dated: April 13, 2006

DANIEL J. LOUGHLIN, J.S.C.