Gateway Detroit Associates, L.L.C., Appellant, v. Witkoff Group, L.L.C., et al., Respondents

Gateway Detroit Associates, L.L.C., Appellant, v Witkoff Group, L.L.C., et al., Respondents. [746 NYS2d 283] [MAJORITY] Contrary to the IAS court’s finding that plaintiff seller had an affirmative obligation to have the necessary mortgage assumption papers or the presence of the mortgagee at the closing, the defendant buyer’s own closing agenda, prepared and transmitted to plaintiff’s attorney on September 16, 1998 in anticipation of a prior mutually rescheduled closing date of September 18, 1998, specified that the consent of the mortgagee to the assumption of the loan by the buyer and the related loan documents were the responsibility of the attorneys for National Bank as trustee for the mortgagee, GMACCM, and that such consent had been executed and delivered and the related documents prepared. Thus, defendants’ claim that plaintiff never made a proper tender because of its failure to bring such documents to the November 5, 1998 closing, which claim was not raised until the instant motion for summary judgment, has no support in the record. Accordingly, defendants’ motion for summary judgment should have been denied and, absent any other viable defense, summary judgment granted to the nonmoving plaintiff on a search of the record pursuant to CPLR 3212 (b). The motion court’s denial of plaintiff’s motion to strike defendants’ reply papers was a proper exercise of its discretion. Concur — Andrias, J.P., Sullivan, Wallach, Rubin and Gonzalez, JJ.