Opinion
3135.
Decided March 16, 2004.
Order, Supreme Court, New York County (Herman Cahn, J.), entered September 24, 2003, which, in an action to enforce a security agreement, inter alia, granted plaintiff's motion for summary judgment and directed that certain collateral held by defendants be turned over to plaintiff, unanimously affirmed, with costs.
Stephen L. Ratner Carla M. Miller, for Plaintiff-Respondent.
Jonathan M. Jacobson, for Defendants-Appellants.
Before: Andrias, J.P., Williams, Lerner, Friedman, JJ.
The motion court correctly held that no issues of fact exist as to whether plaintiff waived its right to foreclose on the security after defendants defaulted or agreed to a restructuring of the loan. There are no writings evidencing the alleged oral waiver to forbear and few specific details are provided as to exactly when and how it was communicated ( compare Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 180-181, 186 [distinguishing waiver from modification and citing Rose v. Spa Realty, 42 N.Y.2d 338, 343]). At best, negotiations continued after defendant borrower defaulted, which, apparently, caused defendants "to hope that plaintiff, out of self-interest, if not magnanimity, would understand the mutual advantages to be gained by an extension" ( National Westminster Bank USA v. Vannier Group, 160 A.D.2d 348, 350). That hope, and the original agreement's requirement that defendant borrower maintain a certain asset to debt service ratio, are possible explanations, other than the alleged oral assurances, for defendant parent corporation's infusion of fresh money into defendant borrower ( see id. at 349-350, citing Rose, 42 N.Y.2d at 344; Massachusetts Mut. Life Ins. Co. v. Gramercy Twins Assoc., 199 A.D.2d 214, 217-218). The instances of bad faith alleged by defendants, to the extent they are more than conclusory, show nothing more than commercially reasonable conduct on the part of a lender seeking to recover as much of its loan as possible.
We have considered defendants' other claims and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.