Ciani v. Georgalas , 711 N.Y.S.2d 903 ( 2000 )

—In an action to foreclose a mortgage, the plaintiffs appeal from an order of the Supreme Court, Queens County (Golar, J.), dated September 17, 1999, which granted the motion of the defendant Demis Georgalas, in effect, to compel the plaintiffs to accept the late payment of money due pursuant to a stipulation settling the foreclosure action.

Ordered that the order is affirmed, with costs.

In a stipulation dated January 28, 1999, the plaintiffs and the respondent agreed that the instant action would be settled upon the payment of $225,000 by the respondent to the plaintiffs on or before April 15, 1999. On that date, the respondent paid $145,000, and obtained the plaintiffs’ permission for an extension until April 19, 1999, to pay the balance. Due to circumstances beyond the respondent’s control, he did not obtain the remaining $80,000 until April 22, 1999.

Neither the stipulation nor the parties by their conduct demonstrated that time was of the essence. Under these circumstances, the Supreme Court providently exercised its discretion in granting the respondent’s motion (see, Gurino v Gabrielli, 133 AD2d 136; cf., Baiting Hollow Acquisitions v Estates of Baiting Hollow, 266 AD2d 490). Thompson, J. P., Luciano, Feuerstein and Schmidt, JJ., concur.