FEDERAL DEPOSIT INSURANCE CORPORATION v. (And a Related Action.) (1998)

In an action to foreclose a mortgage, the third-party defendant E.W. Howell Co., Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Feuerstein, J.), entered February 26, 1997, as (1) granted the joint motion of the plaintiff and the additional defendant to dismiss the remaining counterclaim and cross claim of E.W. Howell Co., Inc., against the plaintiff and the additional defendant, respectively, and (2) denied its cross motion to amend its answer, counterclaim, and cross claim.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents.

The cross claim and counterclaim of the third-party defendant E.W. Howell Co., Inc. (hereinafter Howell), assert, inter alia, conclusory allegations that the plaintiff bank improperly failed to inform Howell of the financial instability of the defendant borrower and developer, Lefcon Partnership (hereinafter Lefcon), and that the bank and Lefcon knew that the project was underfunded.   However, the bank was under no duty to inform Howell of Lefcon's financial condition (see, Wall St. Transcript Corp. v. Ziff Communications Co., 225 A.D.2d 322, 638 N.Y.S.2d 640;  Jolly King Rest. v. Hershey Chan Realty, 214 A.D.2d 422, 625 N.Y.S.2d 35), and the bank was under no obligation to fully fund the project (see, Howard Sav. Bank v. Lefcon Partnership, 209 A.D.2d 473, 476, 618 N.Y.S.2d 910).   Thus, these assertions fail to state a cause of action.   Howell's proposed amended pleadings also plainly failed to state a cause of action, and the court, therefore, properly denied Howell's motion to amend its pleadings (see, Crimmins Contr. Co. v. City of New York, 74 N.Y.2d 166, 544 N.Y.S.2d 580, 542 N.E.2d 1097;  Strook & Strook & Lavan v. Beltramini, 157 A.D.2d 590, 591, 550 N.Y.S.2d 337).

Howell's remaining contentions are without merit.

MEMORANDUM BY THE COURT.