Valley National Bank, as successor to the Park Avenue Bank, Plaintiff–Respondent, v. Stephen L. Gurba, et al., Defendants–Appellants. (2017)

Supreme Court, Appellate Division, First Department.

Valley National Bank, as successor to the Park Avenue Bank, Plaintiff–Respondent, v. Stephen L. Gurba, et al., Defendants–Appellants.

3624

Decided: April 04, 2017

Friedman, J.P., Sweeny, Moskowitz, Gische, Kapnick, JJ.

The Law Offices of Thomas M. Mullaney, New York (Thomas M. Mullaney of counsel), for Stephen L. Gurba, appellant. Fischer Law Group, New York (Andrea Fischer of counsel), for Evelyn Gurba, appellant. Kriss & Feuerstein LLP, New York (Dwight Yellen of counsel), for respondent.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered December 15, 2014, which, after an inquest, dismissed defendants' affirmative defense of failure to mitigate and directed entry of judgment in plaintiff's favor in the total amount of $4,905,185.26, unanimously affirmed, without costs.

The motion court correctly dismissed the defense of failure to mitigate, since plaintiff had no duty to sell the nonperishable collateral at any particular time, regardless of the demand of defendants (see First Intl. Bank of Israel v Blankstein & Son, 59 N.Y.2d 436, 447 [1983] ). The court also correctly allowed the calculation of the debt based on default interest, where plaintiff had the clear contractual right to impose such interest once a default occurred.

The fraud defenses were dismissed in another order not appealed from, and, in any event, the defenses were correctly dismissed, as there was no writing that met the requirements of 12 USC § 1823(e)(1) (see Aurora Loan Services LLC v. Sadek, 809 F Supp 2d 235, 241 [SD N.Y.2011] ).

CLERK

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