Marine Midland Bank-Western v. Center of Williamsville, Inc.

Order unanimously reversed, with costs, and motion denied. Memorandum: This is an appeal from an order of Special Term Erie County Court which dismissed appellants’ counterclaim and affirmative defenses interposed in response to respondent’s (Mariné Midland Bank-Western) action to foreclose upon a mortgage securing a principal indebtedness in the amount of three million dollars owed to the respondent bank by appellant Center of Williamsville, Inc. In our opinion the pleadings as amplified by the affidavits present issues of fact, which preclude summary judgment, on the third affirmative defense as to whether the bank by its conduct induced the appellants to believe that they would be given additional time, beyond the agreed upon due date, to obtain substitute financing, and whether such belief by the appellants was reasonable and acted upon by them to their prejudice thereby" estopping the respondent from foreclosing its mortgage without further notice (see Arnot v Union Salt Co., 186 NY 501; Thomson v Poor, 147 NY 402; Royce v Rymkevitch, 29 AD2d 1029; Krebs v Carpenter, 124 App Div 755; Korpacz v 120 Middleton Realty Corp., 217 NYS2d 779; see, also Wiltsie, Mortgages [5th ed], vol. 1, § 172, pp 294-295). This case should proceed immediately to trial to avoid undue prejudice to respondent by further delay. (Appeal from order of Erie County Court, in foreclosure action.) Present—Cardamone, J. P., Simons, Mahoney, Goldman and Del Vecchio, JJ.