Mariash v. Bastianich ( 1982 )

— Order, Supreme Court, New York County (Tyler, J.), entered on or about February 10, 1982, which denied plaintiff-appellant’s motion for summary judgment in this mortgage foreclosure action, reversed, on the law, and motion granted, with costs. The mortgagee is entitled to enforce an acceleration clause in his contract in the absence of waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct (Graf v Hope Bldg. Corp., 254 NY 1; Ferlazzo v Riley, 278 NY 289). Defendants do not urge that plaintiff is guilty of bad faith, fraud or oppressive or unconscionable conduct. They do rely on waiver or estoppel. However, this record “ ‘does not demonstrate knowledgeable acceptance of late payments over an extended period which would constitute a waiver of the right to insist upon timely payments’” or an estoppel (Bowers v Zaimes, 59 AD2d 803, 804; Ford v Waxman 50 AD2d 585). Concur — Sandler, J. P., Carro and Lupiano, JJ.