NORTH FORK BANK v. 163 35 REALTY CORP (2002)

In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Berke, J.), dated June 26, 2001, as denied those branches of its motion which were for summary judgment against the defendants 163-35 L & M Realty Corp., Fish Tails Restaurant, Ltd., Linda Falco, and Joseph S. DeFontaine, for a default judgment against the defendant Michael Falco, and for the appointment of a referee to compute the amounts due to it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In light of the fact that the plaintiff failed to submit evidence of the date upon which it elected to accelerate the mortgage loan, a question of fact exists as to whether the defendant 163-35 L & M Realty Corp. (hereinafter L & M), was in default at that time.   Accordingly, the Supreme Court properly denied those branches of the plaintiff's motion which were for summary judgment against the defendants L & M, Fish Tails Restaurant, Ltd., Linda Falco, and Joseph S. DeFontaine, a default judgment against defendant Michael Falco, and the appointment of a referee to compute the amounts due to it (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   In light of our determination, we do not reach the issue of whether the plaintiff's acceptance of partial payments after electing to accelerate the mortgage loan constitutes a waiver of the right to accelerate or foreclose.