LEVINE v. INFIDELITY

ORDERED that the appeal from the amended order of reference dated June 13, 2000, is dismissed as abandoned, without costs or disbursements; and it is further,

ORDERED that the order dated February 8, 2000, is affirmed; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

The Supreme Court properly granted the plaintiff's motion for summary judgment upon reargument. Pursuant to paragraphs 7 and 13 of the mortgage, the plaintiff was entitled to declare the defendants Infidelity, Inc., and Richard B. Nye (hereinafter the mortgagors) in default, and to accelerate payment under the note when the mortgagors demolished the existing structure on the property without the plaintiff's consent. It is well settled "that a mortgagor is bound by the terms of his [or her] contract and cannot be relieved from his [or her] default * * * in the absence of waiver by the mortgagee, or estoppel, or bad faith, fraud, oppressive or unconscionable conduct on the latter's part" (Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 183; Ferlazzo v. Riley, 278 N.Y. 289, 292). Here, the mortgagors failed to demonstrate any basis for preventing the plaintiff from enforcing the terms of the mortgage.

The appellants' remaining contentions are without merit.

O'BRIEN, J.P., FRIEDMANN, FEUERSTEIN and COZIER, JJ., concur.