Marine Midland Bank, N.A. v. Mitchell ( 1984 )

Order and judgment unanimously affirmed, without costs. Memorandum: In this action to foreclose a collateral security mortgage defendants appeal from an order dismissing the affirmative defenses and granting summary judgment to plaintiff. The first affirmative defense is that defendant Mitchell was forced to give the collateral mortgage through economic duress, i.e., that plaintiff, who had financed defendant’s auto dealership and held defendant’s personal guarantee and a security interest in the vehicles, threatened to close defendant’s business by enforcing the guarantee and security interest unless defendant signed the mortgage. Special Term properly dismissed that defense as a matter of law on the ground that “[t]he threatened exercise of a legal right cannot constitute duress” (Marine Midland Bank v Stukey, 75 AD2d 713, affd 55 NY2d 633, citing Tarrytown Nat. Bank & Trust Co. v Clark, 261 App Div 937; see Muller Constr. Co. v New York Tel. Co., 50 AD2d 580, affd 40 NY2d 955). Special Term also properly dismissed the second affirmative defense, that there was a lack of consideration. II In responding to plaintiff’s motion for summary judgment, defendant, for the first time, asserted that the mortgage had been obtained by duress because plaintiff had threatened to press criminal charges concerning a bad check issued by him. Defendant has waived that defense by failing promptly to disaffirm the contract and by accepting the benefits of the agreement for which the mortgage was given (see Marine Midland Bank v Stukey, supra; 1163 Realty Corp. v United Institutional Servicing Corp., 55 AD2d 908, 909; Grubel v Union Mut. Life Ins. Co., 54 AD2d 686). Moreover, duress based on threats of criminal prosecution should have been pleaded as an affirmative defense (see CPLR 3018, subd [b]; Bruechaud v Bank of New York Trust Co., 157 Misc 375, 376; 25 Am Jur 2d, Duress and Undue Influence, § 30). (Appeal from order and judgment of Supreme Court, Wayne County, Parenti, J. — summary judgment.) Present — Hancock, Jr., J. P., Denman, Boomer, Green and Moule, JJ.