Anglo Irish Bank Corp. v. Ashkenazy

Judgment, Supreme Court, New York County (O. Peter Sherwood, J.), entered August 31, 2011, which, without an evidentiary hearing, fixed the amount of damages awarded to plaintiff at $1,600,000, plus statutory interest, and judgment, same court, (Eileen Bransten, J.), entered November 29, 2011, which, without an evidentiary hearing, fixed the amount of damages awarded to plaintiff at $3,420,300 plus statutory interest, unanimously affirmed, with costs. When defendants conceded that the election of remedies provisions of the Real Property Actions and Proceedings Law did not apply to them, they effectively waived their argument that they were entitled to a setoff in the amount of the proceeds of the foreclosure sales on the amount they owed on their guaranties (see TBS Enters. v Grobe, 114 AD2d 445, 447-448 [2d Dept 1985], lv denied 67 NY2d 602 [1986]). In any event, the unconditional guaranty of payment signed by defendants waived any defense, reduction or setoff, including as a result of any legal action by mortgagee against the mortgagor (see generally McMurray v Noyes, 72 NY 523, 524-525 [1878]). As such, defendants were not entitled to an inquest to offer evidence of the amounts plaintiff received from the out of state foreclosures on the two properties that were the subject of the mortgages. Concur — Tom, J.P., Friedman, Sweeny and Feinman, JJ.