NATIONAL LOAN INVESTORS v. GOERTZEL

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

NATIONAL LOAN INVESTORS, L.P., respondent, v. Peter GOERTZEL, et al., appellants.

Decided: June 29, 1998

MILLER, J.P., THOMPSON, JOY and FLORIO, JJ. Andrew P. Zweben, Kingston, N.Y., for appellants. Sanders, Gutman & Brodie, P.C., Brooklyn, N.Y. (Jordan Brodie of counsel), for respondent.

In an action to foreclose a mortgage, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Beisner, J.), dated June 16, 1997, as granted the plaintiff's motion for leave to enter a deficiency judgment against them in the principal sum of $221,321.93.

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

Contrary to the contention of the defendant mortgagors, National Loan Investors, L.P. (hereinafter National Loan), which is the assignee of the mortgage and promissory note, is entitled to the deficiency judgment.   In 1991, the mortgagors entered into a stipulation with National Loan's predecessor-in-interest, which provided that the foreclosure action would be discontinued if certain conditions were met.   The mortgagors failed to satisfy those conditions and essentially concede that they are in default under the mortgage and promissory note.   In the stipulation, the mortgagors agreed to waive any defenses to the foreclosure action and further agreed that they “shall be jointly and severally liable for any deficiency and shall consent to the entry of judgment against them for the full amount of said deficiency”.   The stipulation expressly stated that the agreement would be binding on the parties' successors and assigns.   Thus, the terms of the stipulation and the subsequent judgment of foreclosure and sale precluded the mortgagors from raising any defenses, including the defense of laches, in opposition to the motion for leave to enter a deficiency judgment (see, Central Funding Co. v. Deglin, 67 A.D.2d 673, 412 N.Y.S.2d 184, affd. 48 N.Y.2d 964, 425 N.Y.S.2d 307, 401 N.E.2d 417;  Griffo v. Swartz, 61 Misc.2d 504, 508-509, 306 N.Y.S.2d 64).

MEMORANDUM BY THE COURT.

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