Downey Sav. & Loan Assn., F.A. v Pinto-Bedoya

[*1] Downey Sav. & Loan Assn., F.A. v Pinto-Bedoya 2009 NY Slip Op 51453(U) [24 Misc 3d 1214(A)] Decided on June 9, 2009 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 9, 2009
Supreme Court, Kings County

Downey Savings and Loan Association, F.A., Plaintiff,

against

Maria Pinto-Bedoya, et al., Defendants.



18956/08



Plaintiff Attorney

Druckman & Sinel

242 Drexel Avenue

Westbury, NY 11590

(516) 876-0800

Defendant Attorney

Becker & D'Agostino

880 Third Avenue

New York, NY 10022

(212) 752-3380

Francois A. Rivera, J.

Upon the foregoing papers, plaintiff Downey Savings and Loan Association, F.A. moves for an order granting summary judgment, striking the answer and cross claims of defendant Maria Pinto-Bedoya, severing the third-party action, appointing a referee to compute and amending the caption.

Plaintiff commenced this action to foreclose a mortgage encumbering the subject property at 2052 East 53rd Place in Brooklyn. The mortgage was executed by Pinto-Bedoya on January 5, 2006 to secure a note in favor of plaintiff in the amount of $428,000.00. Pinto-Bedoya received title to the subject property by deed dated January 5, 2006. According [*2]to the real property transfer report annexed to this deed, the property was sold to Pinto-Bedoya for $538,000.00. By deed dated January 5, 2006 (the same date Pinto-Bedoya received title to the property and executed the mortgage in favor of plaintiff) Pinto-Bedoya transferred the property to defendant Y & S Development of NY, Inc. (Y & S). There is no indication that Pinto-Bedoya received any consideration for the conveyance to Y & S.

According to the affidavit of plaintiff's senior vice president, John Amador, Pinto-Bedoya defaulted under the terms of the mortgage by failing to pay the monthly installment due on January 1, 2008 or on any month thereafter, resulting in acceleration of the loan. In her verified answer, Pinto-Bedoya sets forth a general denial of the allegations of the complaint and asserts two cross claims against Y & S for indemnification and for fraudulently divesting Pinto-Bedoya of title to the premises and wrongfully taking the loan proceeds for its own use. Pinto-Bedoya subsequently commenced a third-party action against Y & S and certain individuals involved in the allegedly fraudulent transactions which occurred on January 5, 2006, contending specifically that she was fooled into serving as a "straw man" for the third-party defendants so that they could obtain the proceeds from plaintiff's mortgage loan in addition to proceeds from a line of credit mortgage executed by Pinto-Bedoya on January 5, 2006 in favor of National City Bank.

Plaintiff established a prima facie case in its action to foreclose the mortgage by demonstrating the existence of the mortgage and mortgage note, ownership of the mortgage, and Pinto-Bedoya's default in payment (Campaign v Barba, 23 AD3d 327 [2005]). It is thus incumbent upon Pinto-Bedoya to assert any defenses which could properly raise a viable question of fact (see Village Bank v Wild Oaks Holding, 196 AD2d 812, 812 [1993]).In opposition to plaintiff's motion for summary judgment, Pinto-Bedoya argues, inter alia, that the motion is premature since it was brought before issue was joined in the third-party action and that the motion papers were not served upon the third-party defendants who filed notices of appearance. By order dated February 27, 2009, this court directed the parties to serve and file memoranda of law to address the issues of whether plaintiff's summary judgment motion was premature and whether the appearing third-party defendants were entitled to be served with plaintiff's summary judgment motion papers. The court received a memorandum of law only from plaintiff.

CPLR 3212(a) provides, in pertinent part, that any party may move for summary judgment in any action after issue has been joined. The requirement that issue be joined before a motion for summary judgment is granted "is intended to show the court precisely what the plaintiff's claims are and the defendant's position as to them, and his defenses are" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3212:11, p 431) and has been strictly adhered to (see Miller v Nationwide Mutual Fire Ins. Co., 92 AD2d 723, 724 [1983] ). It has been held the motion does not lie before joinder of issue "[a]lthough the papers present no triable issue" (Milk v Gottschalk, 29 AD2d 698 [1968]) and that the Supreme Court is powerless to grant summary judgment prior to joinder of issue (see CPLR 3212[a]; Union Turnpike Associates, LLC v. Getty Realty Corp., 27 AD3d 725, 728, [*3]812 NYS2d 628 [2006]). In this matter, however, there is no dispute that issue has been joined in the main as contemplated by CPLR 3212. The statute makes no further requirements with respect to the joinder of issue in related third-party actions. Because there are no claims by plaintiff asserted against the third-party defendants (other than Y & S), there is no reason to "show the court precisely what the plaintiff's claims are and the [third- party defendants'] position as to them, and [their] defenses." Therefore this court finds no merit in Pinto-Bedoya's contention that plaintiff is precluded from moving for summary judgment merely because issue was not joined in the third-party action (see Connors v Wilmorite, Inc., 225 AD2d 1040 [1996]).

CPLR 2103 (e) provides in relevant part that "[e]ach paper served on any party shall be served on every other party who has appeared, except as otherwise may be provided by court order or as provided in section 3012 or in subdivision (f) of section 3215." It is not clear whether the third-party defendants who have appeared contemplated that such appearances were relevant to the main action in addition to the third-party action to which they were named as parties. Plaintiff states in its memorandum of law that since plaintiff need not wait for issue to be joined in the third-party action prior to moving for summary judgment, "it follows that" plaintiff need not notice third-party defendants with its motion.

While this court is not convinced that parties named in and appearing in a third-party action who were not otherwise named in the primary action are entitled to notice of a summary judgment motion in the primary action, this court nonetheless declines to grant summary judgment to plaintiff at this time. A mortgage foreclosure action is equitable in nature (see Notey v Darien Constr. Corp., 41 NY2d 1055 [1977] ). Pinto-Bedoya has set forth allegations that the subject mortgage transaction was entangled in fraud and misrepresentation on the part of Y & S and third-party defendants. Pinto-Bedoya further asserts that there is a similar foreclosure action which was brought by plaintiff against Y & S, National City Bank and a different "straw man" defendant which involved the same third-party defendants as in this matter and involved similar activities among the participants. This court is of the opinion that Pinto-Bedoya should at least be entitled to obtain discovery from plaintiff prior to a grant of summary judgment in order to ascertain whether plaintiff had knowledge of any fraud in the underlying transactions or even if plaintiff was entangled in any wrongdoing allegedly perpetrated by Y & S and the third-party defendants (see Gates v Easy Living Homes, Inc., 29 AD3d 733 [2006]).

As a result, plaintiff's motion is denied in all respects without prejudice to renew pending completion of discovery.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.