Tenth City Associates, Respondent, v. Principal Mutual Life Insurance Company, Appellant

Tenth City Associates, Respondent, v Principal Mutual Life Insurance Company, Appellant. [626 NYS2d 108] [MAJORITY] Order and judgment (one paper), Supreme Court, New York County (Beatrice Shainswit, J.), entered February 17, 1994, which granted plaintiffs motion for summary judgment in the sum of $125,000 plus interest, costs and disbursements, unanimously reversed, on the law, plaintiffs motion denied and defendant’s cross-motion for summary judgment in its favor granted, without costs. By its own terms, plaintiffs mortgage application dated October 9, 1986, which was drafted by it and accordingly must be construed against it, clearly establishes that plaintiff agreed to and was obligated to pay defendant a "Non-Refundable Loan Processing Fee” of $125,000 representing 1/4 of 1% of the $50 million mortgage sought. There is simply no evidence that payment of such fee was contingent in any way upon the parties agreeing on the terms of the proposed mortgage, plaintiff obtaining a mortgage commitment or upon the loan closing. Concur—Ellerin, J. P., Wallach, Kupferman, Asch and Mazzarelli, JJ.