People's United Bank v Westhampton Group, LLC

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People's United Bank v Westhampton Group, LLC 2012 NY Slip Op 32768(U) November 7, 2012 Supreme Court, Suffolk County Docket Number: 11-36854 Judge: Thomas F. Whelan 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] SIJOln FORM ORDER copy INDEX No. 11-36854 SUPREME COURT - STATE OF NEW YORK IAS. PART 45 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court ---------------------------------------------------------------)( PEOPLE'S UNITED BANK, successor by merger To BANK OF SMITHTOWN, Plaintiff, MOTION DATE 9/20/12 ADJ. DATES 10/12/12 Mot. Seg. #002 - MG SETTLE ORDER CDISP Y__ N ----"'JEFFREY B. HULSE, ESQ. Attys. For Plaintiff 295 No. Country Rd. Sound Beach, NY 11789 -againstWESTHAMPTON GROUP, LLC, WESTHAMPTON GROUP B, LLC, NEW YORK STATE DEPT. OF TA)(ATION & FINANCE, ANTHONYF.CATANZARO,WALTER STASHIN, "JOHN DOE ONE" to and including "JOHN DOE TEN" the last ten names being fictitious and unknown to the plainti tf, the persons Or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in : the complaint, known as 17,21,23,24,27,28,29, 32 WILLOWOOD COURT, WESTHAMPTON, NEW YORK, NO# (TA)( LOT 43.013) WILLOWOOD COURT, WESTHAMPTON, NEW YORK and 150 MONTAUK HIGHWAY, WESTHAMPTON, NEW YORK, MENDELSON & ASSOC., PLLC Attys. For Defendants Westhampton 101 Atlantic Ave. Lynbrook, NY 11563 NEW YORK STATE DEPT. OF LAW Atlys. For NYS 300 Motor Pkwy. Hauppauge, NY 11788 Defendants. ---------------------------------------------------------------)( Upon the following papers numbered I to _9_ read on this motion by the plaintiff for summal"\' judgment. the appointment of referee to compute and other relief ; Notice of Motion/Order to Show Cause and supporting papers~; Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papcrs_ 5-7 ; Replying Affidavits and supporting papers 8-9 , Other ; (and aRe1 Ilea., iug COtllt,jel in ,':tJppcll <lI1d dppo$ed to tile IIIe>tielli) it is, ORDERED that those portions of this motion (#002) by the plaintiff for an order discontinuing the SECOND Cause of action set forth in the complaint wherein the plaintiff seeks foreclosure of a subsequent, second mortgage to that of the plaintiffs first consolidated mortgage is granted, without opposition; and it is further [* 2] Peoples United Bank v Westhampton CJroup LLC, el af Index No. 11-36854 Page 2 ORDERED that those portions of this motion wherelll the plaintiff seeks summary judgment on its FIRST cause of action for j~)reclosure of its lirst consolidated mortgage together with a deficiency judgment against all obligors under the consolidated note and the written guarantees is considered under CPLR 3212 and RPAPL 1321 and is granted; and it is tll1iher ORDERED that the remaining portions of the instant motion wherein the plaintiff seeks an order dropping as party dcfendants the unknowns listed in the caption and appointing a referee to compute amounts due under the tirst consolidated mortgage is considered under CPLR 1321 and is granted. In December 01'20 11, the plaintiff commenced this action to foreclose two rnoJ1gages owned by it by virtue of its merger with original mortgagee, the Bank of Smith town. In the FIRST cause of action set j<xth in its complaint, the plmntiff seeks foreclosure ofa consolidated l1loJ1gagedated June 11,2007 which secures a consolidated mortgage note ofthe same date executed by the defendants, Westhampton Group LLC and Westhampton Group B, LLC [hereinafter V/esthampton or LLC defendants] lJ1the amount of$3.087 ,500.00. The plaintiff also seeks ddiciencyjudgments agalJ1stthe Westhampton LLCs and against individual defendants, Cantanzaro and Stashin, who guaranteed the obligations of Westhampton under the note. In a second cause of action set forth in the complaint, the plmntiff sought foreclosure of a second, subordinate mortgage given by the LLC defendants on December 26, 2007 that secured a note in the amount of $212,500.00, payment of \vhich was likewise guaranteed by the individual defendants. Issue was allegedly joined by service ofajoint answer of all four of the obligor defendants dated February 7, 2008. The answer advances no affirmative defenses nor counterclaims. An appearance without answering was made by the Attorney General of the State of New York on behalf of the New York State Department of Taxation & Financc. The unknown defendants listed Il1the caption werc never joined herein by service o I'process or otherwise. By the instant motion (#002), the plamtiff seeks, among other things, an order discontinuing the plaintiffs SECOND cause of action for foreclosure of the second mortgage that is the subject of the plaintiffs SECOND cause of actio11. That application is granted as there is no opposition thereto and the plaintiff is entitled to withdraw its demands for foreclosure of its subordinate, second mortgage, without [eave of court (see CPLR 3217(a». The plaintifrs SECOND cause of action is thus deemed withdrawn and is dismissed, without prejudice. The plaintiff's demands t~)l" summary Judgment dismissing the answer of the obligor defendants and for summary judgment on the rcmaining causes of action set forth in its complaint, namely, the FIRST (foreclosure of the t-irstmortgage, sale and a deticiency judgment against the LLC defendants), and the THIRD (deficiency judgments against the guarantor defendants, Catanzaro <md Stash in) is granted !()r the reasons stated below. It is now well scttled that a prima bcie case for foreclosurc and sale is established by the pla1l1tilrs production of the 1ll0l1gage, the unpaid note dnd due cVH.ienceofa default under the lerms thereoC(see CPLR 3212; RPAPL ~ 1321; HSBC Bank v Shwartz, 88 AD3d 961, 931 NYS2d 528 ["2d Dept 20111- Couutrywide Home Loans v DelpllOl1se, 64 AD3d 624, 883 NYS2d 135 [2d Dept 2009.1; [* 3] Peoples United Bank v Westhampton Group LLC. Index No. 11-36854 el (Ii Pagc 3 J.P. Morgan Chase Bank vAgllel/o, 62 i\D3d 662, 878 NYS2d 397 [2d Dept 2009]; Wells Farf:o 8ank Minnesota v Perez, 41 AD3d 590, 837 NYS2d 877l2d Oept 2007]; Household Fin. Realty Corp. of New York v Willi', 19 AD3d 545, 796 NYS2d 533 l2d oept 2005]; Ocwell Fed. Ballk FSB v Miller, 18 AD3d 527, 794 NYS2d 650 [2d Dept 2005]). To establish prima facie cntitlement to judgment as a matter of/aw on the issue ofliability with respect to a guaranty, a plaintiff must submit proof of the underlymg note, a guaranty, and the failure of the defendant to make payment in accordance with the terms oCthose instruments (see Griffon V, LLC v 11 East 36th, LLe, 90 AD3d 70S, 934 NYS2d 472 [2d Dept 2011]; Baron Assoc., LLev Garelll Grollp Enter., Inc., 96 AD3d 793, 946 NYS2d 611 pd Dept 2012 J). Here, the moving papers included copies of the loan documents that are subject of the plaintiff's FIRST and THIRD causes of action including the consolidated note and mortgage of June 11, 2007 and the written guarantees of the obligations of the mortgagor thereunder. The moving papers also included due proof that the LLC defendants failed to pay the amounts due on August 1,2011 and that neither the LLC ddendants nor the guarantor defendants have cured the defaults in payment. The plaintifTthus established its entitlement to summary judgment on its Fl RST and IHIRD causes ofactiol1. [twas thus incumbent upon the answcring dcfendants to submit proof sufficient to raise a genuine questlOll of fact rebutting the pla1l1tiff's prima facie showing or in support of affirmative defenses asserted in their answer, if any or otherwise possessed by them (see Flag.,·tar Bank v Be/f(ljiore, 94 AD3d 1044,943 NYS2d 551 [2d Dept 2012]; Grogg Assocs. v South Rd. Assoc.5., 74 AD3c11021 907 NYS2d 22 [2d Dept 2010]; Washington Milt. Bank v O'Connor, 63 AD3d iD2, 880 NYS2d 696 [2eI Dept 2009J; .J.P. ilforgall Chase Bank, NA v AgileI/o, 62 AD3d 662, 878 NYS2d 397 [2d Dept 2009]; Household Fill. Realty Corp. of New York v Wbm, 19 AD3d 545, supra). A review of the opposing papers submitted by the defendants reveals, however, that they are insufficient to raise any genuine question of fact requiring a trial on the merits of the plaintiff's claims for foreclosure and sale. The defendants' challenges to the plaintiff's demands for summary judgment rest upon two procedural grounds. The first of such chalIenges is premised upon claims that the plaintiff failed to satisfy the general burdens of proof imposed upon allY litigant seeking the drastic remedy of summary judgment by the provisions of CPLR 3212 and the case authorities interpreting same. While the defendants point to a multitude of such case authorities in string citations that span several pages of counsel's affirmation in opposition, the defendants' reliance thereon is misplaced. The standards for a prima facie case in a J<)feclosure action against the borrower and its guarantors are measured by those imposed by the case authorities cited above and the plaintiff clearly satisfied those standards for the reasons indicated. The defendants' second challenge is premised upon claims that the plaintiff's failure to serve a bill of particulars in response to the defendants' February 9, 2012 demand Corsuch bill warrants a denial of the plainti n~s 111otion.The plaintiff counters this argument by contending that the defendants' bill of particulars demand is actually one fur the production of documents. Continuing, the plaintiff contends tl1at ncither the absence of response to thc improper bill of particulars demand nor the absence of dlscoverv warrants a denial of thIs motion. With these contentions the court i1Qrcesfor the reasons stated below. ~ The distinctions between bills of particulars, which are governed by Article 30 ofthe CPLR, and the discovery devices that are the subject of Article 31 oJ·the CPLR, are well established. The purpose [* 4] Peoples United Bank v Westhampton Group r ,I.C, el (II Index No. 11-36854 Page 4 oCa bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial (see Jones v LeFTllllce Leasing L.J' .. 81 AD3d 900. 902, 917 NYS2d 261 [2d Dept2011 J). --A bill of particulars may not be used to obtain evidcntiary material" (Fremontlnv. & LOlm v Gemile. 94 AD3d 1046,943 NYS2d ! S2 [2d Dept 20121 quoting, Nt/55 v Pettibone Mercury Corp., 1121\D2d 744.492 NYS2d 240 r2d Dcpt 1985J). [n contrast., the statutory disclosure devices that arc the subject of Al1iclc 31 or the CPLR are mmed at uneovering evidence or information that may lead to evidence material and rclevant to the prosecution of claims or defenses (see Friel v Papa, 87 A03d 1108, 930 NYS2d 39 pd Dcpt 2011 J). A review ofthe deJendants' demand Cora bill of particulars reveal that it calls for the production of documents and other materials that are evidentiary in nature rather than calling for an elucidation of the allegations in the complaint. The demand is thus not one 1()f a bill of particulars. but instead, is one for the production of documents as is the case when a Notice for Discovery and Inspection is served pursuant to CPLR 3120. The defendants' demands for a denial of this motion due to the absence of service of the bill demanded are thus rejected as unmeritorious. To the extent that the defendants' opposition may be read as a request for a denial of this motion so as to afford the defendants the opportunity to engage in discovery as contemplated by CPLR 3212 (t). it is denied_ The rule at CPLR 3212(1) provides that "should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just". Appellate case authorities have long instructed that to avail oneself of the safe harbor this rule affords, the claimant must "offer an evidentiary basis to show that discovery may lead to relevant evidence and that the facts essential to justi!)' opposition to the motion were exclusively within the knowledge and control ofthe plaintiff' (Martinez v Kreyclwlllr, 84 A03d 1037, 923 NYS2d 648 [2d Dept 2011]; see Seaway Capital Corp. v S()()Sterling Realty Corp .. 94 AD3d 856, 941 NYS2d 87112d Oept 2012]). '['he '''mere hope or speculation that evidence suJlicient to defeat a motion for summary judgment may be uncovered' by f1ll1herdiscovery is an insufficient basis for denying the motion" (Woodard v ThofflllS, 77 AD3d 738 at 740, 913 N. Y,S.2d 103 [2d Ocpt 20] OJ. quoting, Lopez v WS Distrib., Inc .. 34 A03d 759, 760, 825 NYS2d 516; see Friedlauder Orgauization, LLC I' Ayorimle, 94 AD3d 693, 943 NYS2d 538 [2d Dept 2012]). Here, the defendants t~'liledto meet this standard. Their participation in the transactions by which the mortgage loan documents were executed, coupled with their failure to advance any material and relevant defenses to the claims on which summary judgment have been demanded, warrant the rejection of any claim of prematurity in the plaintiffs motion (see Lambert v Bracco, 18 AD3d 619. 795 NYS2d 662 12d Dcpt 2005 I). Moreover. the defendants' failure to move for sanctions or for any of the other remedies afforded by the provisions of CPLR 3042 following the plaintiffs failure to respond to the dcrendants' bill demand lends support to those portions of the record which evidence the absence oC any viable legal defenses to the plaintiffs claims. To the extcl1l1hat the defendants' oppositiolllllay fairly be considered as resting upon claims that the statutory requirement that issue be joined prior to the interposition or a summary judgment motion has not been met due to the plaintiff's failure to serve a bill of particulars, such claims are rejected as 111l1l1eritorious (see CPLR 3212Ibl). Issue was joined by service or the joint ans\ver of the obligor defendants. A bill of particulars is not a pleading, but instead. an amplilication of the pleading and s~rvicl' thereof is not required j()]' the joinder of issue. [* 5] Peoples United Rank v Westhampton Group LLC, ef 01 Index No. 11-36854 Page 5 Finally, and for purposes of clariiying the record, the court notes that the opposing papers submitted by the defendants refer to a third ground j~)l" denial of the plaintiffs motion. However, no the such tlmd ground is advanced in the opposing papers, including the affirmation of defendants' counsel. A review thereof reveals that there arc only two topic headings set forth in such anirmatioTI. Although they are numbered 1, then 3, counsel's affirmation contains no topic heading numbered 2. ·rhere are no missing pages, as the paragraphs set forth in counsel's affirmation III opposition are sequenced consecutively, without any omissions. None of the other submissions of the defendants include a third ground J{,)l" the denial of the plaintiffs motion. In light oCthe foregoing, the court finds that the plaintiff is entitled to summary judgment 011 its complaint and the dismissal ofthc answer served by the answenng defendants. Those portions of this motion wherein the plaintiff seeks such relief are thus granted. Those portions of the instant motion wherein the plaintiff seeks a discontinuance of the claims against the unknown defendants are granted to the extent that such unknown defendants arc dropped as party defendants. The plaintiffs fi.mher demands for an order amending the caption to reflect same is also granted The moving papers further established a default in answering on the part of the remaining defendant v'iho appeared without answering in response to the plaintiffs service of its complaint. Accordingly, the default in answering of defendant New York State Department of Taxation and Finance, is hereby fixed and determined. Since the plaintiff has been awarded summary judgment against the sale answering defendant and has established a debult in answering by the remaining defendant, the plaintiff is entitled to the appointment of a referee to compute amounts due under the consolidated note and mortgage that is the subject oftbe plaintitl's FIRST cause of action (see RPAPI., § 1321; Bank (~f East A!iia, Ltd. v Smith, 201 AD2d 522, 607 NYS2d 431 [2d Dcpt 1994];Vermollt F'ed. Bank v Chase, 226 AD2d 1034, 641 NYS2d 440 [3d Dept 1996]; Perla v Real Prop. Holdings, LLC,23 Misc3d 697, 874 NYS2d 873 [Sup Ct. Kings County 2009]). The plainti tTis directed to settle, on not less than fiJtcen (15) days notice to all appearing counsel, a proposed order of reference providing in blank for the coul1's designation of a referee to compute a 11 such other matters necessan Iy attendant with such appointment and order or reference. It shall also rencct the court's dismissal of the plaintiff's SECOND cause of action pursuant to the terms of this order The proposed order of reference must he accompanied hy copV oj"fhis order. Dated: ----U!~~-

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