June 25, 2013
Anglo Irish Bank Corporation Limited, etc., Plaintiff-Respondent,
Izzy Ashkenazy, Defendant-Appellant. Anglo Irish Bank Corporation Limited, etc., Plaintiff-Respondent,
Izzy Ashkenazy, et al., Defendants-Appellants.
Goldberg Weprin Finkel Goldstein LLP, New York (Kevin J. Nash of counsel), for appellants.
Peretore & Peretore, P.C., Staten Island (Frank Peretore and Fredda Katcoff of counsel), for respondent.
Tom, J.P., Friedman, Sweeny, Feinman, JJ.
Judgment, Supreme Court, New York County (O. Peter Sherwood, J.), entered August 31, 2011, which, without an evidentiary hearing, fixed the amount of damages awarded to plaintiff at $1, 600, 000, plus statutory interest, and judgment, same court, (Eileen Bransten, J.), entered November 29, 2011, which, without an evidentiary hearing, fixed the amount of damages awarded to plaintiff $3, 420, 300 plus statutory interest, unanimously affirmed, with costs.
When defendants conceded that the election of remedies provisions of the Real Property Actions and Proceedings Law did not apply to them, they effectively waived their argument that they were entitled to a set off in the amount of the proceeds of the foreclosure sales on the amount they owed on their guaranties (see TBS Enters. v Grobe, 114 A.D.2d 445, 447-448 [2d Dept 1985], lv denied 67 N.Y.2d 602 ). In any event, the unconditional guaranty of payment signed by defendants waived any defense, reduction or set off, including as a result of any legal action by mortgagee against the mortgagor (see generally McMurray v Noyes, 72 NY 523, 524-525 ). As such, defendants were not entitled to an inquest to offer evidence of the amounts plaintiff received from the out of state foreclosures on the two properties that were the subject of the mortgages.