Fineo v. Chemical Bank

—In an action, inter alia, to foreclose a mortgage, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Morrison, J.), entered March 1, 1991, which granted the defendant Chemical Bank’s motion to dismiss the plaintiffs’ second, third, and fourth causes of action, and denied, in part, the plaintiffs’ cross motion for leave to serve an amended complaint. Ordered that the order is affirmed, with costs. The Supreme Court properly dismissed the plaintiffs’ causes of action seeking to have the subordination agreement declared invalid and rescinded. Neither Chemical Bank nor its assignor were under a duty to the plaintiffs to ensure that the borrower utilized the loan proceeds to improve the property, and the plaintiffs’ allegations of bad faith on the part of Chemical Bank were insufficient (see, Brooklyn Trust Co. v Fairfield Gardens, 260 NY 16, 24-25; Woodside Sav. & Loan Assn. v Minisink Homes, 51 AD2d 593, 594). In addition, the court did not improvidently exercise its discretion in denying, in part, the plaintiffs’ cross motion for leave to amend the complaint, since the plaintiffs’ allegations of mutual mistake were clearly without merit (see, Chimart Assocs. v Paul, 66 NY2d 570, 573; DeGuire v DeGuire, 125 AD2d 360). Thompson, J. P., Sullivan, Ritter and Joy, JJ., concur.