Acorn Properties, Inc. v. East 7th Realty Associates , 656 N.Y.S.2d 274 ( 1997 )

—Order, Supreme Court, New York County (Elliott Wilk, J.), entered January 12, 1996, which, in a mortgage foreclosure action, insofar as appealed from, denied plaintiffs motion for a deficiency judgment, unanimously affirmed, with costs.

Plaintiffs claims that defendant had committed fraud in procuring the mortgage and waste in managing the property, and that the exception to the nonrecourse provision of the mortgage therefore applied, was properly rejected as untimely, having been first raised only in plaintiffs reply papers on the motion. It was plaintiffs burden to come forward with evidence, if not in the foreclosure proceeding then certainly in its motion for a deficiency judgment, that defendant had violated a condition of the nonrecourse mortgage (cf., e.g., First Nationwide Bank v Brookhaven Realty Assocs., 223 AD2d 618, lv dismissed 88 NY2d 963). Moreover, the claim of fraud lacks merit (see, FGH Realty Credit Corp. v Bonati, 226 AD2d 188). Concur—Murphy, P. J., Sullivan, Rosenberger, Rubin and Andrias, JJ.