Schiff v. Sokolow

Summary

The court affirmed an order granting the plaintiff summary judgment declaring her right under General Obligations Law § 5-501(3)(b) to prepay an owner-occupied residential mortgage without penalty. The court also affirmed dismissal of the defendants’ attorney-fee counterclaim and remitted the matter for entry of an appropriate declaratory judgment.

Holdings

1. The mortgage secured a loan or forbearance within the meaning of General Obligations Law § 5-501 (3) (b).
2. Plaintiff established prima facie that the loan carried interest exceeding six percent per annum, was secured primarily by an interest in owner-occupied real property improved by a one- to six-family residence, and was sought to be prepaid more than one year after it was made; therefore, she was entitled to prepay without penalty.
3. The counterclaim seeking an attorney's fee was properly dismissed on summary judgment.
4. Because the action was in part for declaratory relief, the matter had to be remitted for entry of an appropriate declaratory judgment.

Questions Presented

1. Whether the mortgage secured a loan or forbearance subject to General Obligations Law § 5-501 (3) (b).
2. Whether plaintiff established that the statutory requirements for penalty-free prepayment were satisfied.
3. Whether defendants raised a triable issue of fact defeating plaintiff's motion for summary judgment.
4. Whether defendants' counterclaim for attorney's fees should be dismissed.
5. Whether the matter required remand for entry of an appropriate declaratory judgment.

Disposition

affirmed