In an August 8, 2011 decision by Justice Oing the court granted plaintiffs partial summary judgment on a motion for a judgment of foreclosure. The plaintiffs served a default notice and brought suit seeking the entire principal due under a note at the default rate of 24% per annum. The defendants moved to dismiss arguing that plaintiffs failed to serve a notice of acceleration which was a condition precedent to bringing suit. Defendants based their argument, in part, on a decision in a different case which they claimed analyzed language identical to the language contained in the documents at issue. The court found that the documents at issue were not identical, in that they did not contain a provision that a notice of acceleration was a condition precedent to bringing suit. The court granted the plaintiffs summary judgment on liability and directed that the amount of damages be determined by a referee.
Prompt Mortgage Providers of North America LLC v. Direct Realty, L.L.C. et al., Sup Ct, New York County, August 8, 2011, Oing, J, Index No. 116889/09.