Gildston v. Terilli , 149 A.D.2d 458 ( 1989 )

In an action to foreclose a mortgage, the defendants Robert M. Terilli, Benito V. Terilli, Maureen E. Terilli and Angela Terilli appeal from an order of the Supreme Court, Westchester County (Walsh, J.), entered April 13, 1988, which denied their motion to vacate a judgment of foreclosure and permit them to serve an amended answer.

Ordered that the order is affirmed, with costs.

Pursuant to a stipulation of settlement entered into on June 11, 1987, in the event the appellants failed to obtain funds or a mortgage commitment to satisfy the amount of the settlement by a specified date, their answer was to be deemed withdrawn and the plaintiff was to be permitted to proceed with the foreclosure action as against them. Since the appellants were unable to obtain the requisite funds or a commitment therefor, the appellants were properly denied permission to serve an answer in response to the amended complaint subsequently served on the remaining defendants, particularly since the amended complaint raised no new matters, but merely served to correct an error in the title of the proceeding pertaining to one of the remaining defendants. Thompson, J. P., Bracken, Brown and Rubin, JJ., concur.