due-on-sale clause in New York

1998The Supreme Court's holding that State law in this respect was superseded under the implied conflict preemption doctrine is equally applicable here: "Although compliance with both [the Federal option] and the Wellenkamp [State] rule may not be a `physical impossibility' the California courts have forbidden a federal savings and loan to enforce a due-on-sale clause solely `at its option' and have deprived the lender of the `flexibility' given it by [the Federal regulations]." ( Id. , at 155 [citations omitted].) III.

1984In De La Cuesta (supra, pp 168-170 ), the court held, inter alia, that the Federal Home Loan Bank Board’s 1976 regulation (12 CFR 546.5-11 [f], recodified in 1980 as 12 CFR 545.8-3 [f]) authorizing Federal savings and loan associations to include due-on-sale clauses in their loan instruments, preempts State law and that, under such regulation, a Federal savings and loan association may, at its option and unrestricted by State limitations, enforce the due-on-sale clause to secure current interest rates.

1983Inst., 63 Misc 2d 863, 866 .) This court holds that the due-on-sale clause here is clear and unambiguous and thus may be enforced according to its terms.

1981Inst., 63 Misc 2d 863 .) Under unusual circumstances, however, some New York courts have declined to enforce the due-on-sale clause.

1984We agree with Special Term’s decision regarding the enforceability of the clause, but note that, inasmuch as this is an action for a declaratory judgment, Special Term should have declared the due-on-sale clause valid and enforceable instead of dismissing plaintiff’s complaint (Lanza v Wagner, 11 NY2d 317, 334 , app dsmd 371 US 74 , cert den 371 US 901 ; Miller v Braun, 89 AD2d 787 ).

1984We agree with Special Term’s decision regarding the enforceability of the clause, but note that, inasmuch as this is an action for a declaratory judgment, Special Term should have declared the due-on-sale clause valid and enforceable instead of dismissing plaintiff’s complaint (Lanza v Wagner, 11 NY2d 317, 334 , app dsmd 371 US 74 , cert den 371 US 901 ; Miller v Braun, 89 AD2d 787 ).

1984(Appeal from judgment of Supreme Court, Chemung County, Crew, J. — summary judgment.) Present — Dillon, P. J., Doerr, Denman, O’Donnell and Moule, JJ. [ 119 Misc 2d 923 .]

1984We agree with Special Term’s decision regarding the enforceability of the clause, but note that, inasmuch as this is an action for a declaratory judgment, Special Term should have declared the due-on-sale clause valid and enforceable instead of dismissing plaintiff’s complaint (Lanza v Wagner, 11 NY2d 317, 334 , app dsmd 371 US 74 , cert den 371 US 901 ; Miller v Braun, 89 AD2d 787 ).

1984We agree with Special Term’s decision regarding the enforceability of the clause, but note that, inasmuch as this is an action for a declaratory judgment, Special Term should have declared the due-on-sale clause valid and enforceable instead of dismissing plaintiff’s complaint (Lanza v Wagner, 11 NY2d 317, 334 , app dsmd 371 US 74 , cert den 371 US 901 ; Miller v Braun, 89 AD2d 787 ).

1984We agree with Special Term’s decision regarding the enforceability of the clause, but note that, inasmuch as this is an action for a declaratory judgment, Special Term should have declared the due-on-sale clause valid and enforceable instead of dismissing plaintiff’s complaint (Lanza v Wagner, 11 NY2d 317, 334 , app dsmd 371 US 74 , cert den 371 US 901 ; Miller v Braun, 89 AD2d 787 ).

1984We agree with Special Term’s decision regarding the enforceability of the clause, but note that, inasmuch as this is an action for a declaratory judgment, Special Term should have declared the due-on-sale clause valid and enforceable instead of dismissing plaintiff’s complaint (Lanza v Wagner, 11 NY2d 317, 334 , app dsmd 371 US 74 , cert den 371 US 901 ; Miller v Braun, 89 AD2d 787 ).

1984We agree with Special Term’s decision regarding the enforceability of the clause, but note that, inasmuch as this is an action for a declaratory judgment, Special Term should have declared the due-on-sale clause valid and enforceable instead of dismissing plaintiff’s complaint (Lanza v Wagner, 11 NY2d 317, 334 , app dsmd 371 US 74 , cert den 371 US 901 ; Miller v Braun, 89 AD2d 787 ).

1984We agree with Special Term’s decision regarding the enforceability of the clause, but note that, inasmuch as this is an action for a declaratory judgment, Special Term should have declared the due-on-sale clause valid and enforceable instead of dismissing plaintiff’s complaint (Lanza v Wagner, 11 NY2d 317, 334 , app dsmd 371 US 74 , cert den 371 US 901 ; Miller v Braun, 89 AD2d 787 ).

1983Corp. v Waccabuc Investors, 90 AD2d 538 ; cf. Nassau Trust Co. v Montrose Concrete Prods.

1983If a landlord wished to protect itself against such vicissitude, it could easily write into the lease a condition subsequent.” (Rubinstein Bros. v Olé of 34th St., 101 Misc 2d, at p 568 .) Similarly, a due on sale clause should not be deemed to be operative by a transfer of stock of the mortgagor corporation.