Siren Realty Corp. v. Biltmore Productions Corp.

Order, entered September 2, 1966, denying the motion of plaintiff-appellant for summary judgment, unanimously reversed, on the law, [520] with $50 costs and disbursements to plaintiff-appellant, and the motion is granted. Plaintiff mortgagee brought suit to foreclose a purchase-money first mortgage upon property owned by defendant mortgagor. Mortgagor admits that it has defaulted in payments of principal, interest and real estate taxes but claims that oral agreements between the parties bar this action. Allegedly, the mortgagee agreed not to foreclose the mortgage until such time as the property was condemned if the mortgagor was financially unable to meet the payments. The purported consideration for this promise was the mortgagor’s agreement to continue to use the property for the production of motion pictures, plays, and television shows. The affidavit submitted in opposition to the motion by the president of the corporate mortgagor is eonelusory and does little more than restate its pleadings. Triable issues of fact are not established merely by repeating the allegations of the pleadings (Pribyl v. Van Loan & Co., 261 App. Div. 503, 504, affd. 287 N. Y. 749). Beyond that, it is not clear when the parties entered into the oral agreements. The answer, however, suggests that they were contemporaneous to the execution of the mortgage and, as such, may not now be raised to vary the terms of the written agreement (see Mitchill v. Lath, 247 N. Y. 377, 381-382). Appeal from order entered on September 2, 1966, denying plaintiff’s motion to modify defendant’s demand for a bill of particulars, dismissed, as academic, without costs or disbursements. No opinion. Concur — Breitel, J. P., Stevens, Steuer, Capozzoli and Witmer, JJ.