MENDLER v. MENDLER (1997)

Judgment, Supreme Court, New York County (Carol Huff, J.), entered on November 4, 1996, which, inter alia, granted petitioner husband's application to discharge a second mortgage he had given to respondent wife, denied petitioner's motion for counsel fees, and bringing up for review a prior order, entered on or about November 18, 1994, which denied respondent's cross motion to dismiss the petition for lack of subject matter jurisdiction, unanimously affirmed, with costs.

While the parties' separation agreement was silent as to whether petitioner could prepay the mortgage, the mortgage agreement contained a clause permitting prepayment, thus rebutting the presumption that prepayment was not permitted (see, Matter of Arthur v. Burkich, 131 A.D.2d 105, 106, 520 N.Y.S.2d 638).  Furthermore, reading the separation agreement and the mortgage together as parts of a single transaction, we find that the parties intended that the mortgage was to secure only the outstanding principal and interest thereon, and that the other debts were to remain unsecured.   Accordingly, petitioner was entitled to a satisfaction of the mortgage upon his tender of the principal and the interest due through the date of tender (see, Three Bros. Estates v. Guli, 205 A.D.2d 525, 613 N.Y.S.2d 56;  compare, Jeffrey Towers, Inc. v. Straus, 31 A.D.2d 319, 297 N.Y.S.2d 450, affd. 26 N.Y.2d 812, 309 N.Y.S.2d 350, 257 N.E.2d 897).   We have considered the parties' remaining contentions for affirmative relief and find them to be without merit.

MEMORANDUM DECISION.