We agree with the IAS Court that plaintiff's claims of disloyalty are speculative at best, based as they are on defendant's rejection of a transaction that even now, after considerable litigation, remains unclear as to exactly how it was supposed to work. While the proposed new mortgagee supposedly agreed to enforce only $250,000 of what was to be a $450,000 replacement mortgage on the trust property, the balance of the mortgage was to remain an encumbrance on the property, and presumably could have been assigned. In contrast, the settlement agreement to which defendant adhered covered all issues between the interested parties, and, most importantly, clearly set forth the consequences of a default in the payment of the mortgage ( see, Matter of Bankers Trust Co., 219 A.D.2d 266, 273, lv dismissed 87 N.Y.2d 1055). The second cause of action based on Judiciary Law § 487 was properly dismissed since defendant was sued in the foreclosure action as trustee, and responded in that capacity ( see, Northern Trust Bank v. Coleman, 632 F. Supp. 648, 650). The motion to renew was also properly denied ( see, Glasburgh v. Port Auth., 193 A.D.2d 441).
Concur — Rosenberger, J. P., Ellerin, Wallach and Saxe, JJ.