Clarke v Parkway Vil. Equities Corp.
Annotate this CaseDecided on June 21, 2012
Supreme Court, Queens County
Michael Clarke and MURIEL CLARKE a/k/a MURIEL POWELL, Plaintiffs,
against
Parkway Village Equities Corp., CITICORP N.A. d/b/a/ CITICORP MORTGAGE, INC., CITIMORTGAGE, INC., Defendants.
28283/2010
Robert J. McDonald, J.
The following papers numbered 1 to 18 were read on this motion by defendant, CitiMortgage, Inc., f/k/a Citicorp Mortgage, Inc., for an order pursuant to CPLR 3212 granting summary judgment in favor of the defendant dismissing plaintiff's sixth cause of action based upon documentary evidence; and in the alternative for an order compelling the plaintiffs to appear for an examination before trial; and striking the plaintiffs' note of issue on the ground that discovery is not complete:
Papers
Numbered
Notice of Motion-Affirmation-Exhibits-Memo of Law .....1 - 10
Affirmation in Opposition-Exhibits....................11 - 15
Reply Affirmation-Exhibits............................16 - 18
_________________________________________________________________
The facts of this case as set forth in this court's decision [*2]dated March 7, 2011, granting plaintiff's motion for a preliminary injunction and in this court's decision dated April 18, 2011, dismissing the plaintiff's seventh cause of action are as follows:
Plaintiffs, MICHAEL CLARKE and MURIEL CLARKE a/k/a MURIEL POWELL, commenced an action against defendants PARKWAY VILLAGE EQUITIES CORP ("Parkway") and CITICORP N.A. d/b/a/ CITICORP MORTGAGE, INC., and CITIMORTGAGE, INC. ("CitiMortgage"), by service of an order to show cause together with the summons and complaint on November 10, 2010. CitiMortgage served its answer, counterclaims and cross-claims on May 24, 2011. Plaintiff filed a note of issue on November 4, 2011.
Parkway Village is a cooperative corporation consisting of approximately 675 residential units located at 144-17 Grand Central Parkway, Kew Gardens Hills, New York. The plaintiffs are the holders of 119 shares of stock entitling them to use Unit 67GA. The shares were purchased by the plaintiffs in April 1988. The plaintiffs have a loan in the principal amount of $74,220.00 with CitiMortgage secured against the corporation shares held by them. The plaintiff is responsible for maintenance payments of approximately $988.00 per month. Plaintiffs contend that since 2007 they have been in continuous disputes with the cooperative corporation, Parkway Village, regarding the payment of maintenance. Parkway Village contends that the plaintiffs' account went into arrears in March, 2007.
CitiMortgage contends that pursuant to the cooperative loan security agreement it has the right to advance payment, without the borrower's consent, in order to defend the lender's security interest, and to subsequently seek reimbursement from the borrower. In November 2009, after CitiMortgage received notices from the Parkway Village of its intent to terminate the shares and foreclose on plaintiffs' lease, CitiMortgage paid Parkway the sum of $24,093.33 to cover the plaintiffs' arrears. In July 2010, a second payment was made by CitiMortgage in the amount of $9,744.70 on account of additional arrears. Plaintiffs' account with CitiMortgage was debited in the total amount of $33,527.07.
Defendant, CitiMortgage, now moves for summary judgment dismissing the plaintiff's sixth cause of action which asserts that Citimortgage wrongfully debited the plaintiffs' account in the amount of $33,527.07 when it paid said sum to Parkway Village without first consulting or getting the consent of the [*3]plaintiffs.
In its answer, CitiMortgage claims that the plaintiffs acquiesced in CitiMortgage's payment to the cooperative, that plaintiffs agreed to reinstate the disbursements made by Citimortgage towards the arrears and that plaintiffs entered into an agreement with Citimortgage whereby a portion of their monthly payments would be applied towards said disbursements. Citimortgage contends that the plaintiffs have been reinstating the disbursements for maintenance arrears on account since May 17, 2010. Thus, Citimortgage contends that the plaintiffs waived any allegation of wrongdoing, ratified the disbursements due and are therefore estopped from asserting claims against the defendant for disbursing sums on arrears to Parkway Village.
CitiMortgage claims that as the security agreement provides that the lender is entitled to advance payment and seek reimbursement from the borrower, and as the transaction history shows that plaintiffs have tendered $150 per month on account together with their principal and interest payment to reinstate the cooperative maintenance, that the documentary evidence is sufficient to demonstrate, prima facie, that defendants are entitled to summary judgment dismissing the plaintiffs' sixth cause of action.
CitiMortgage moves in the alternative to strike the plaintiffs' note of issue on the ground that plaintiffs have failed to appear for two court ordered depositions and have failed to respond to defendant's notice for discovery and inspection.
In opposition, plaintiff contends that since 2007 he has had problems with Parkway regarding the payment of maintenance fees and the arrears allegedly owed. Clarke states that he did not owe the amount of $3,650.65 which was set forth in the August 2010 "Notice to Cure" as he payed all that he owed. He states that he has never been provided with a financial accounting despite numerous requests and despite a requirement contained in the offering plan that the cooperative is to provide a periodic accounting. Clarke states that the inadequate record keeping of Parkway has caused him to unfairly accumulate late fees. Plaintiff contends that the amounts Parkway claimed were owed were inaccurate and that they never authorized Citimortgage to debit their account in the total amount of $33,527.07 for arrears in maintenance. Plaintiffs contend that even if the documentary evidence shows that CitiMortgage is entitled to make payments on account of plaintiffs' arrears, the money debited by CitiMortgage was in excess of what was owed. Plaintiff states in this regard [*4]that at a November 2011 meeting plaintiffs' counsel showed proofs of payment made by plaintiff to Parkway. Counsel contends therefore, that there is a question of fact as to whether the amount debited from plaintiffs account was correct. Counsel also contends that the account history provided by Citimortgage showing periodic payments of $150.00 fails to show that these payments were meant by plaintiff to be a concession to the full amount of arrears alleged to be owed to Parkway.
With respect to the timeliness of the motion, CitiMortgage states that the note of issue was filed on November 4, 2011 and concedes that the 120 day period provided for filing summary judgment motions elapsed on March 4, 2012 prior to service of the within motion. The instant motion was served on March 9, 2012, five days late. Movant requests that its lateness be excused because the period of time that the motion was late is diminimus and because defendant was waiting for the execution and return of the affidavit from Jeff Becker which was not signed until March 7, 2012.
Plaintiffs contend that the motion should be dismissed as untimely and that the defendants have failed to provide a reasonable excuse for the delay.
Upon review and consideration of the defendant's motion, plaintiff's affirmation in opposition and defendant's reply thereto, this court finds that the defendant's motion for summary judgment is denied as untimely. As stated above, the note of issue was filed on November 4, 2011. Therefore, pursuant to the 120 day rule contained in CPLR 3212(a) and this court's preliminary conference order, the summary judgment motion should have been served by March 4, 2011. Here, there is no question that the motion was served on March 9, 2011. A motion on notice is made when a notice of the motion or an order to show cause is served" (CPLR 2211; see Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560 [2d Dept. 2006]). As this motion was served past the deadline date, the motion is untimely (see Brill v City of New York,2 NY3d 648 [2004]).
The defendant neither moved for leave to make a late summary judgment motion nor submitted good cause for its failure to timely move for summary judgment (see Rivers v City of New York, 37 AD3d 804 [2d Dept. 2007]; Gaines v Shell-Mar Foods, Inc.,21 AD3d 986 [2d Dept. 2005]; Gonzalez v Zam Apartment Corp., 11 AD3d 657 [2d Dept. 2004]). The failure to obtain a signature on an affidavit in a timely manner is not a sufficient reason to file a late motion. In the absence of a good cause showing, the court has no discretion to entertain even a meritorious, [*5]non-prejudicial motion for summary judgment (see Brill v City of New York, supra; Bivona v Bob's Disc. Furniture of NY, LLC, 2011 NY Slip Op 9253[2d Dept. 2011]; Greenpoint Props., Inc. v Carter, 82 AD3d 1157 [2d Dept. 2011]; John P. Krupski & Bros., Inc. v Town Bd. of Town of Southold, 54 AD3d 899 [2d Dept. 2008]; Thompson v New York City Bd. of Educ., 10 AD3d 650 [2d Dept. 2004]). In Milano v. George, 17 AD3d 644 (2nd Dept. 2005), the Second Department held that even though the appellant's motion for summary judgment was made only one day past the deadline, the record did not establish "good cause" for the delay (also see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Hernandez v 35-55 73rd St., LLC, 2011 NY Slip Op 90 [2d Dept. 2011]; Derby v. Bitan, 2011 NY Slip Op 8322 [2d Dept. 2011]; Tapia v Prudential Richard Albert Realtors, 79 AD3d 735 [2d Dept. 2011]; West Broadway Funding Assoc. v Friedman, 74 AD3d 798 [2d Dept. 2010]; Chechile v Magee, 66 AD3d 625[2d Dept. 2009]).
That branch of the defendant's motion to strike the plaintiffs' note of issue is granted to the extent that the note of issue shall be stricken if the plaintiffs do not appear for a deposition on or before August 10, 2012, and do not provide counsel with responses to all outstanding demands for discovery and inspection by said date.
Accordingly, based upon the foregoing, it is hereby
ORDERED, that the defendant's motion for summary judgment is denied, and it is further,
ORDERED, that the plaintiffs shall appear for an examination before trial and respond to all outstanding demands for discovery and inspection on or before August 10, 2012.
Dated: June 21, 2012
Long Island City, NY
______________________________
ROBERT J. MCDONALD
J.S.C.
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