Barrow v. Rocksprings Management Co.

Order and judgment, Supreme Court, New York County (Edward J. Greenfield, J.), entered on December 15, 1989 and December 19, 1989, respectively, which, inter alia, granted plaintiff’s motion for summary judgment as to attorneys’ fees and late charges arising from a prior mortgage foreclosure action, unanimously affirmed, with costs. In March 1986, plaintiff sold defendant an apartment building. The parties executed a purchase-money note and mortgage and a consolidated agreement which merged the purchase-money mortgage and the preexisting bank mortgage (NatWest Mortgage) into a single lien. In April of 1988, plaintiff instituted this foreclosure action as a result of defendant’s default on the mortgage note. Pursuant to a settlement agreement, defendant paid the overdue principal and the accrued interest. The issues of attorneys’ fees and late charges were reserved and secured by defendant’s deposit of $150,000 in escrow should defendant ultimately be found liable for such payments. The preexisting NatWest Mortgage specifically provided for late charges, attorneys’ fees and costs, which conditions were not modified or eliminated by the consolidation agreement which expressly provided for compliance with existing bonds, notes and mortgages. Nor do we find the imposition of late charges and supplemental interest contained within the terms of this purchase-money mortgage to be usurious or otherwise prohibited. (See, Barone v Frie, 99 AD2d 129, 131; Mandelino v Fribourg, 23 NY2d 145.) We have considered appellant’s other claims and find them to be without merit. Concur—Sullivan, J. P., Milonas, Rosenberger, Ross and Smith, JJ.