Jeferne, Inc. v. Capanegro

¶1In an action to foreclose a mortgage, defendant Sun Haven Motel Corp. appeals from an order of the Supreme Court, Suffolk County (Velsor, J.), dated December 23, 1981, which denied its motion for summary judgment. Order reversed, on the law, with $50 costs and disbursements, motion granted and complaint dismissed as against defendant Sun Haven Motel Corp. When looking at the facts in a light most favorable to plaintiff, it is clear that no overt act was taken, or even attempted, to notify appellant of plaintiff’s intention to exercise its right of acceleration. Without such an overt act, appellant’s tender of payment for the amount in default was improperly refused (see Sherwood v Greene, 41 AD2d 881; 446 West 44th St. v Riverland Holding Corp., 267 App Div 135; Seligman v Burg, 233 App Div 221). Titone, J. P., Gibbons, Gulotta and Thompson, JJ., concur.