HELLER FINANCIAL INC v. The Fuji Bank, Limited, Additional Defendant-Respondent on Counterclaim. (1997)

Order, Supreme Court, New York County (Lewis Friedman, J.), entered May 2, 1995, which, to the extent appealed from, granted plaintiff's and additional counterclaim defendant's motion for summary judgment of foreclosure, struck the answer and counterclaims of defendants-appellants and appointed a referee to compute the amount due upon the note and mortgage, unanimously affirmed, with costs.

 Waiver of right to foreclose under Nassau Trust Co. v. Montrose Concrete Prods. Corp. (56 N.Y.2d 175, 451 N.Y.S.2d 663, 436 N.E.2d 1265) requires a specific, identifiable promise (see, Blittner v. Friesch-Groningshe Hypotheebank Realty Credit Corp., 221 A.D.2d 152, 633 N.Y.S.2d 148).   Here, the lenders kept their promise to afford the borrowers a limited, conditional accommodation.   The lenders did not prevent the condition's fulfillment (cf., Long Is. Sav. Bank v. Geloda/Briarwood Corp., 235 A.D.2d 301, 652 N.Y.S.2d 611).   A promise to keep negotiating afterward, even if made, would not be specific enough to effect a waiver of the right to foreclose (see, Massachusetts Mut. Life Ins. Co. v. Gramercy Twins Assocs., 199 A.D.2d 214, 217, 606 N.Y.S.2d 158).   The fraud claims are meritless because lenders made no binding commitment (see, Kirk/Marsland Adv. v. Cunard Line, 188 A.D.2d 440, 591 N.Y.S.2d 1013).   The negligent misrepresentation claim was properly rejected because there is no evidence of a relationship of special confidence and trust (see, Kimmell v. Schaefer, 89 N.Y.2d 257, 263, 652 N.Y.S.2d 715, 675 N.E.2d 450), or of any misrepresentation.   We have considered defendants-appellants' remaining arguments and find them to be without merit.

MEMORANDUM DECISION.