Wells Fargo Bank, N.A. v Wellington Park Villa, LLC

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Wells Fargo Bank, N.A. v Wellington Park Villa, LLC 2012 NY Slip Op 30540(U) February 28, 2012 Supreme Court, Suffolk County Docket Number: 18908-2011 Judge: Emily Pines Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER INDF.X NUMBER: 18908~2011 SUPREME COURT - STATE OF NEW YORK COMMERCIAL Prese1lf: HON. EMILY PINES J. S. c. DIVISION, PART 46, SUFFOLK COIJNTY Original Motion Oatc: Motion Submit Date: Motion Sequence No_: 10-31-2011 11-13-2011 001 MG [ J FrNAL [ x I NON FINAL _____________________ x WELLS FARGO BANK, N.A., successor by merger to WACHOVIA BANK, N.A., Plaintiff, -againstWELLINGTON PARK VILLA, LLC, GARV PASSAVIA, VINCENT PASSA VIA, WELLINGTON PARK VILLAS CONDOMINIUM, NEW YORK VILLAS, LLC., NEW YORK STATE DEPARTMENT OF TAXA nON AND FINANCE, "JOHN DOE I-50", "MARY ROE I-50", "XYZ CORP, I-SO", AND "ABC LLC, 1-50", The names of the ".John Doe 1-50" "Mary Roc I-50", "XYZ Corp, 1-50", ~md ,.ABC LLC, 1-50", defendants being fictitious, and unknown to the Plaintiff, the persons and tbe entities being parties baving an interest in or lien against the premises sought to be foreclosed herein, as owner tenant, licensee, occupant or othenvise. Defendants. _____________________ x Upon the following papers numbered 1 to __ read on this motion for summarY judgment; Notice of Motion! Order 10 Show Cause and supponing papers 1-45 ; Notice of Cross Motion and supporting papers _ __ ; Answering Affidavits and supporting papers 46 - 49 ; Replying Affidavits and supporting papers 50 - 53 ____ ; Other plaintiff's memoranda onaw; (and after ltearin3 eouMe1 ill ",apport and oppo~ed :\".1 the nl\".ltl\".ln) it is, ORDERED that the plaintiffs motion (001) for an order granting summary judgment against [* 2] ch:fCndan!s Wellington Park Villas. I.LC Gary Passavia. and Vincent Passavia Wellington, a default judgment as against defendant New York State Department of Taxation and Finance pursuant to CPLR 3215 (a). the appomtmcnt of a referee to compute and report the amount due the plamtiff. and (0 amend the complaint by deleting the "John Does," "Mary Roes," '-XYZ COlV .." and '"ABc' LLC" from the caption. 1S granted; and it is further ORDERJ:'D that plaintiff's counsel is directed to serve a copy of this Order VI,'ith otice of Entry N upon counsel for defendants pursuant to CPLR 2103(b)( I).,(2) or (3), within thirty (30) days of the date the order is entered and thereafter file the arJidavit(s) of service with the Clerk of the Court. In this action the plaintifC Wells Fargo Bank, N.A., successor by merger to Wachovia Bank, N.A., seeks to foreclose three mortgages on a construction project for the premises located at 47 'vVellington Place, Amityville, New Yark. The project was intended to be constructed as a sixty-one unit condominium community divided into five buildings. On December 26, 2007, defendant Wellington Park Villas, LLC ("Wellington"), as borrower, executed and delivered to Wachovia Bank, N.A. an acquisition note in the amount of$2,625,000.OO and mortgage, security agreement and assignment of leases and rents, a building note in the principal amount of $10, 117,912.00 and building mortgage, and a project loan in the principal amount of$524,088.00, and project mortgage. The documents were duly recorded on January 14,2008, in the Suffolk County Clerk's OJJice in Liber 21658 page 49 et seq. The plaintiff subsequently recorded a UCC-l Financing Statement in the office of the Suffolk County Clerk on January g, 2008 under No. 07-00093. The record also reveals that defendants Gary Passavia and Vincent Passavia executed a personal guaranty for up to $1,325,000.00, and a completion guaranty that the project would be completed by September 26,2009 as [llither security for the loans. On or about March 20, 2010, Wachovia Bank, National Association. merged into and viith plaintiff Wells Fargo Bank, National Association. Delcndants converted the mortgaged property to a condominium project pursuant to ArtIcle 9-B oCthe Real Property Law ofNevv York and pursuant to a Declaration Establishing the Condominium which was recorded on October 7, 2009. On March] 1,2011, the plaintiff served a notice of default upon the defendants for their failure 1'0 repay the loans to the plaintiff in full on the December 26.2009 maturity date. The instant action was commenced by filing on June 11, 2011 with a notice of pendency. Page 2 of 5 [* 3] rile complaint alleges. among other things. that the defendants defaulted (I) by Lliling to timely pay the loans to the plaintiff in full on the December 26, 2009 maturity dak, (2) /~liling to complete construction urthe improvements on or before September 26, 2009, and permitting superior tax lIens to be riled agamst the m0l1gaged premises by !~tilingto pay real property t<.lxes and assessments due and ()'vving the mortgaged property for several years. on III addition, the amended cOlnplaint alleges, among other things, that subsequent to the filing of the Declaration of the Condominium Establishing the Condominium, the mortgaged premises were subdivided into 63 separate tax lots. A subdivision map \',,'asexecuted by deh:ndant New York Villas as owner and sponsor of the mongaged premises. The amended complaint also alleges that any rights that New York Villas may have acquired ill and to the mortgaged premises is subject and subordinate to the liens of the plaintiff's mortgages. Defendants served a verified ans\ver denying the material allegations of the verificd complaint and amended verified complaint and asserting eight aftirmative defenses and two counterclaims alleging that the plainti ff failed to timely deliver a subordination agreement which subordinates the lien of the mortgagee to the Declaration Establishing the Condominium, The plaintiff now moves for summary judgment against defendants Wellington, Gary Passavia, and Vincent Passavia, dismissing their aflirmative defenses, and dismissing the counterclaims, (2) a default judgment against defendant New York State Department of Taxation and Finance pursuant to cruz 3215 (a), (3) the appointment of a referee to compute and report the amount due the plaintifl and (4) to amend the complaint by deleting the "John Does," "Mary Roes," "XYZ Corp,," and "ABC, LLC" 11-0111 caption. the l\ party moving tor summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sui'ticient evidence to demonstrate the absence of any material issues or hlct (Willegratl v New York Ulliv. iWed. etr., 64 NY2d 851, 487 NYS2d 316 1"1985]; Zuckermall v New York, 49 NY2d 557, 427 NYS2d 595 [1980]). Of course, summary judgment IS a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (Stewart Title I11S. Co. JI Equitable Laud Servs., 207 AD2d 880, 616 NYS2d 650 ["ld Dept 1994]), but once a prima l~lCicshowing has been made. the burden shl J'tsto the party opposing the motion 10produce evidentiary proorin admissible form sufficient to establish material issues of fact which require a trial 01'1he action (A/vMez v Pro.\pect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]). Pagc30C5 [* 4] It is well settled that. in moving for summary judgmcnt in an action lO foreclose a mortgage. the plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default (see Republic Natl. Bank olN.Y. v o 'Kane. 308 AD2d 482,764 NYS2d 635 [ld Dcrt 10031: Vil/llge Bauk l' Wild Oaks Holdiug. 196 AD2d 812. 601 NYS2d 940 [2sd Dcpt 1993). When the plaintiff has done so. it is incumbent upon the defendant to producc evidentiary proof in admissible form sulTicicnt to require a trial of his de tenses (see Republic Natl. Balik 01N. Y. v O'RtUle, ,1'11/)1"(1 at 482). The plaintiff has made a prima facie showing of its entitlement to judgment as a matter arlaw by producing the notes and mortgages executed by the defendants, as well as evidence of nonpayment. In support of its motion, the plaintiff submits, among other things, an affidavit of Vanessa Rodriguez, President of Wells Fargo Bank, N .A., the pleadings, the notes, mortgages, guarantees, assignments of Icases and rents. and default lettcr. In her affidavit. Ms. Rodriguez recounts the history ofthe notes and mortgages and states, among orher things, that defendants defaulted on the note by failing to timely pay the installment of principal and interest due on May 25, 20 II. Rodriguez also states that it is beyond dispute that Wellington did not complete construction of the improvements on or before September 26, 2009, the loans matured on December 26.2009. Rodriguez states that such maturity date has not been extended, no portion of the $9.499,077.67 prim:ipal balance afthe loans has been repaid since 1hematurity date of the loans and reat (:5t<ll(:taxes remained delinquent until the plaintiff paid them in July and August 201l after the commencement of this action. Rodriguez further slates that after the December 26, 2009ma1urity date of the loans, the obligors admitted the defaults in the March 9, 20 I 0 Pre-Negotiation Letter and the October 4. 2010 Supplement to Pre-Negotiation Letter. in addition, the record reveals that each mortgage contains a clause pursuant to Section 2.2 (j), entitled "Remedies" which provides: "the mortgagor hereby waives the right to a trial by jury. the right to claim any offset and the right to assert a counterclaim in any action or proceeding brought by the mortgagee to enforce any of its rights under the note or under this mortgage." The plainti rc having made a prima facie showing of its entitlement to summary judgment. the Page40f 5 [* 5] burden then sluned to the defendants TO respond. with rebutting evidence demonstrating that an issue of j~lctexists (see Republic Natl. Rank oiN. y. 11 o 'Kane, supra). In opposition, defendmlts have t11ilcd to raIse an issue of t1lCt.Defendants do not dispute the existence afthe mortgages, i.ll1d deJcndants Gary Passavia imd Vincent Passavia do not dispute their agreement to guarantee the project's completion and their agreement to guarantee up to $1.325,000.00. Defendants also do not actually claim to have paid the deht. [n addition, defendants railed to raise triable issue of fact 1A,'ithegard to their counterclaIms, r inilsmuch as defendants agreed to waive their right to assen a counterclaim in the event of debult. Turnrng to the branch of the motion requesting a det~HJlt udgment as against defendant New j York State Department of Taxation and finance, the plainti ff has demonstrated that defendant has not appeared III the action. In addition, plainti ffhas duly complied with the notice requirements of CPLR 3215 (1). Accordingly, the applJcation for a default judgment is granted. finally, the branch of the motion to amend the pleadings to delete the "John Docs," "Mary Roes," "XYZ Corp.," and "ABC, LLC" from the caption is granted. Accordingly, the motion for summary judgment is granted. Submit Order. Dated: February 28, 2012 Riverhead, New York I I FINAL [,] NON FINAL To i\lLmnev Cor PlaintilT Witldcls Marx Lane & MitkndorC By Samu81 M Mizrahi, 15(i West 56Lh Street LLP Esq. New York New YOI"k 10019 Altomev for Dcfcnd,mts Lazet·, Aptheker, Rosella & Yadid, LLP 8y GIUseppe Frallzella, Esq. Melville Law Center 225 Old Country Road Mdville. New York 11747<2712 Page 5 of 5

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