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RED TULIP, LLC v. NEIVA

44 A.D.3d 204 (2007)

842 N.Y.S.2d 1

RED TULIP, LLC, Plaintiff, v. JUNIA HISSA NEIVA et al., Defendants. (And a Third-Party Action.) PALM BEACH MORTGAGE MANAGEMENT, LLC, Appellant, v. RED TULIP, LLC, et al., Defendants, and JUNIA HISSA NEIVA, Respondent.

Appellate Division of the Supreme Court of the State of New York, First Department.

August 2, 2007.

Attorney(s) appearing for the Case

Dollinger, Gonski & Grossman, Carle Place (Matthew Dollinger of counsel), for appellant.

Karlsson & Ng, P.C., New York City (Kent Karlsson of counsel), for respondent.

ANDRIAS, J.P., SAXE, SULLIVAN and McGUIRE, JJ., concur.

OPINION OF THE COURT

GONZALEZ, J.

The primary issue in this mortgage foreclosure action is whether an unconditional guaranty and waiver of defenses signed by defendant Neiva in connection with a commercial mortgage loan bars her from asserting her remaining affirmative defenses and counterclaim in the action. We hold that because the guaranty signed by Neiva waived all defenses except "actual payment," and because it is further undisputed that the mortgage...

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