ACORN PROPERTIES INC v. City of New York Environmental Control Board, et al., Defendants.

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Supreme Court, Appellate Division, First Department, New York.

ACORN PROPERTIES, INC., Plaintiff-Appellant, v. EAST 7TH REALTY ASSOCIATES, Defendant-Respondent, City of New York Environmental Control Board, et al., Defendants.

Decided: April 29, 1997

Before MURPHY, P.J., and SULLIVAN, ROSENBERGER, RUBIN and ANDRIAS, JJ. Arthur T. Walsh, for Plaintiff-Appellant. Mitchell B. Nisonoff, for Defendant-Respondent.

Order, Supreme Court, New York County (Elliott Wilk, J.), entered January 12, 1996, which, in a mortgage foreclosure action, insofar as appealed from, denied plaintiff's motion for a deficiency judgment, unanimously affirmed, with costs.

Plaintiff's claims that defendant had committed fraud in procuring the mortgage and waste in managing the property, and that the exception to the nonrecourse provision of the mortgage therefore applied, was properly rejected as untimely, having been first raised only in plaintiff's reply papers on the motion.   It was plaintiff's burden to come forward with evidence, if not in the foreclosure proceeding then certainly in its motion for a deficiency judgment, that defendant had violated a condition of the nonrecourse mortgage (cf., e.g., First Nationwide Bank v. Brookhaven Realty Assocs., 223 A.D.2d 618, 637 N.Y.S.2d 418, lv. dismissed 88 N.Y.2d 963, 647 N.Y.S.2d 715, 670 N.E.2d 1347).   Moreover, the claim of fraud lacks merit (see, FGH Realty Credit Corp. v. Bonati, 226 A.D.2d 188, 641 N.Y.S.2d 12).