72nd Street Associates v. Greystone Servicing Corp.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered September 21, 2005, which, insofar as appealed from as limited by the briefs, granted defendant mortgagees’ motion for summary judgment dismissing plaintiff mortgagor’s cause of action for breach of contract to assign its FHA-insured mortgage to its new lender without payment of an assignment fee, and denied plaintiffs cross motion for leave to amend the complaint to add a cause of action for negligence, unanimously affirmed, with costs. The breach of contract cause of action was properly dismissed as the alleged oral promises to assign the mortgage were gratuitous (see Curtis Props. Corp. v Greif Cos., 212 AD2d 259, 264 [1995]). We reject plaintiffs argument that defendants’ admission of the existence of such agreement in their statement of undisputed facts six years after the fact constitutes a writing under General Obligations Law § 5-1103 eliminating the need for consideration. Moreover, the alleged agreement was precluded by United States Government National Mortgage Association (GNMA) rules requiring the unanimous consent of all the holders of GNMA securities backed by the mortgage. Plaintiff’s proposed cause of action alleging defendants’ negligence in timely and competently procuring the required consents was properly rejected as prejudicially untimely (see Steinhardt Group v Citicorp, 303 AD2d 326, 327 [2003], lv denied 100 NY2d 506 [2003]; Heller v Louis Provenzano, Inc., 303 AD2d 20, 23 [2003]). Concur — Saxe, J.P., Marlow, Sullivan, Nardelli and Gonzalez, JJ.