Gratton v. Dido Realty Co.

In a mortgage foreclosure action, the appeals are from two judgments of the Supreme Court, Queens County, (1) the first of which was entered March 14, 1977, and, inter alia, appointed a referee to ascertain and compute the amount due the plaintiff on the note and mortgage and (2) the second of which was entered on July 28, 1977, and, inter alia, directed a sale at auction of the property in question. Judgments affirmed, with one bill of costs. The conceded existence of cost overruns amounting to approximately $139,000 is relevant on the issue of the mortgagor’s conduct. Under these circumstances, it was not oppressive or unconscionable for the mortgagee to *960 refuse to fund another advance until the builder paid the interest due and furnished lien waivers by the contractors. Both calculations of the effective rate of interest by the appellants’ expert, Mr. Schiff, are inapplicable, as the builder was not charged with interest on the unadvanced funds but only with interest on the funds as they were made available to it (cf. Band Realty Co. v North Brewster, Inc., 37 NY2d 460, 462-463 ). We have considered the appellants’ claim of error in the Trial Judge’s granting of the plaintiff’s motion to amend the amended complaint so as to allege additional defaults for nonpayment of interest in the three months preceding the commencement of this action. Damiani, J. P., Suozzi, Rabin and Hawkins, JJ., concur. [ 89 Misc 2d 401 .]