EMC Mortgage Corp. v. Gross — 289 A.D.2d 438

Majority

p. 438

EMC Mortgage Corporation, Respondent, v David Gross et al., Appellants.

[735 NYS2d 581]

In an action, inter alia, to compel and direct the defendants to execute a modification agreement to their mortgage agreement, the defendants

p. 439

appeal from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated July 10, 2000, as granted the plaintiff’s motion for summary judgment and denied the defendants’ cross motion for summary judgment.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the defendants’ contentions, the Supreme Court properly granted the plaintiffs motion for summary judgment compelling execution of the modification agreement. Upon the plaintiff making out a prima facie case for summary judgment, the defendants failed to establish or even raise a triable issue as to whether the plaintiff breached the modification commitment letter when it commenced a foreclosure action in 1996. Accordingly, there is no bar to specific performance of the modification commitment letter (see, Kraitenberger v Aloow Realty Corp., 172 AD2d 647 ; cf., Madison Invs. v Cohoes Assocs., 176 AD2d 1021 ; Contro v White, 176 AD2d 1052 ).

The defendants’ remaining contentions are without merit. Altman, J. P., S. Miller, Crane and Prudenti, JJ., concur.

Cases cited

Kraitenberger v. Aloow Realty Corp. 172 AD2d 647 N.Y. App. Div. 1991-04-15 p. 439
Madison Investments, Inc. v. Cohoes Associates 176 AD2d 1021 N.Y. App. Div. 1991-10-17 p. 439
Contro v. White 176 AD2d 1052 N.Y. App. Div. 1991-10-17 p. 439