Sell Suds LLC v Lelekakis
Annotate this CaseDecided on October 24, 2012
Supreme Court, Queens County
Sell Suds LLC
against
Elaine Lelekakis, et al.,
13780/2011
For the Plaintiff: Harry Zubli, Esq., 1010 Northern Blvd., suite 310, Great Neck, NY 11021
For the Defendant Elaine Lelekakis: Lester & Associates, PC, by Peter K. Kamran, Esq., 600 Old Country Road, suite 229, Garden City, New York 11530
Charles J. Markey, J.
The plaintiff commenced this foreclosure action by filing a copy of the summons and complaint on June 8, 2011 seeking to foreclose on a mortgage given by John J. Voyiatgis on the real property known as 20-53 29th Street, Astoria, in Queens County, New York, to secure a promissory note in the principal amount of $135,000.00 evidencing a loan from Greenpoint Bank. Plaintiff alleges that it is the holder of the subject mortgage and note pursuant to an assignment and allonge dated April 14, 2011 and that the mortgage is in default in that the monthly installment payment due on August 1, 2010. Plaintiff also alleges that because the default continued beyond the grace period set forth in the mortgage and note, it elected to accelerate the entire mortgage debt, and declare the entire unpaid balance of principal, and all other chargeable amounts, immediately due and payable.
Defendants Elaine Lelekakis and John James Voyiatgis, as executor and trustee of Estate of George Voyiatgis, s/h/a John James Voyiatgis, as executor of the Estate of George Voyiatgis and Trustee FBO George Voyiatgis, II, each served an answer with various affirmative defenses. Defendant Eric Michael Pasinkoff, appearing pro se, filed a notice of appearance. The remaining defendants are in default in appearing or answering the complaint.
The plaintiff previously moved for summary judgment and leave to appoint a referee. By order dated October 13, 2011 without prejudice, and upon vacatur, for summary judgment in favor of plaintiff pursuant to CPLR 3212 against defendants Lelekakis and John James Voyiatgis as executor and trustee of the Estate of George Voyiatgis, to strike the answers and affirmative defenses filed by defendants Elaine Lelekakis and John James Voyiatgis, as executor and trustee of the Estate of George Voyiatgis, for leave to appoint a referee to compute the amount due plaintiff, and for leave to amend the caption deleting defendants "John Doe 1-10" and "Jane Doe 1-10." Defendant Elaine [*2]Lelekakis opposes those branches of the motion by plaintiff for summary judgment against her, to strike her answer and affirmative defenses, and for leave to appoint a referee. The remaining defendants have not appeared in relation to the motion.
That branch of the motion for leave to vacate the order dated October 13, 2011 is granted. That order, which was issued when the bankruptcy stay was in effect in the bankruptcy case filed by defendant Elaine Lelekakis, is void (see, Valiotis v Psaroudis, 69 AD3d 610 [2010]).
The plaintiff did not cause defendants "John Doe No.1-10" and "Jane Doe #1-10" to be served with process, insofar as it has determined the John and Jane Does are unnecessary party defendants. That branch of the motion for leave to amend the caption as proposed is granted.
With respect to that branch of the motion by plaintiff pursuant to CPLR 3212 for summary judgment against defendants Elaine Lelekakis and John James Voyiatgis, as executor and trustee of the Estate of George Voyiatgis, and to strike those defendants' answer, it is well established that the proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
On a motion for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default (see, Wells Fargo Bank, N.A. v Webster, 61 AD3d 856 [2009]; Republic Natl. Bank of NY v O'Kane, 308 AD2d 482, 482 [2003]; see Aames Funding Corp. v Houston, 44 AD3d 692, 693 [2007]).
In support of that branch of its motion for summary judgment as against defendants Elaine Lelekakis and John James Voyiatgis, as executor and trustee of the Estate of George Voyiatgis, plaintiff submits, among other things, a copy of the pleadings, the note, mortgage, assignment, allonge, and a notice dated September 16, 2010, notifying "Estate of John Voyiatgis C/O Elaine Lelekakis," of the default in payment under the subject mortgage and note and demanding immediate full payment of the entire principal balance, together with interest, late fees, escrow and all applicable charges and fees. Plaintiff also submits an affirmation of regularity of its counsel, and the affidavit of Steve Hackel, a member of the limited liability company, attesting to the default in payment of the installment payment due on August 1, 2010 and each month thereafter, under the note and mortgage.
The plaintiff has established its prima facie entitlement to summary judgment as against defendants Elaine Lelekakis and John James Voyiatgis, as executor and trustee of the Estate of George Voyiatgis (see, EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370 [2002]; IMC Mtge. Co. v Griggs, 289 AD2d 294 [2001]; Paterson v Rodney, 285 AD2d 453 [2001]; see also Bercy Investors, Inc. v Sun, 239 AD2d 161 [1997]). The burden shifts to them to raise a triable issue of fact regarding their defenses (see, Barcov Holding Corp. v Bexin Realty Corp., 16 AD3d 282 [2005]; EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370 [2002], supra; First Nationwide Bank, FSB v Goodman, 272 AD2d 433 [2000]).
Defendant Elaine Lelekakis disputes that there was a default under the terms of the mortgage and note predicated upon nonpayment of the August 1, 2010 monthly mortgage installment, and therefore contends the mortgage debt should not have been accelerated or the action commenced. Defendant Elaine Lelekakis asserts that she paid the monthly mortgage installment due on August 1, 2010 to Capital One Bank (Capital One), the parent company to plaintiff's assignor. She also asserts [*3]that she tendered a check to Capital One for payment of the monthly mortgage installment due on September 1, 2010 which was cashed, but thereafter Capital One sent her a check to refund her payment, claiming her tendered amount was insufficient. She additionally asserts that Capital One thereafter refused to accept any other installment payments from her. Defendant Elaine Lelekakis offers copies of various cancelled checks made payable to Capital One and dated each month from January 2010 through August 2010.
The plaintiff acknowledges receipt of the payments made by defendant Elaine Lelekakis by check on account of the loan in January 2010 and each month thereafter including September 2010. In his reply affidavit, Mr. Hackel indicates that such payments, however, were applied to satisfy past due amounts, and that the payment made on August 11, 2010 was applied to the then outstanding June 1, 2010 mortgage payment. He also indicates that from the beginning of the 2010 fiscal year until the mortgage loan was accelerated (by a default letter dated September 16, 2010), payments on the mortgage loan were not current and thus the mortgage was in default. Plaintiff offers a copy of the computer printout of Capital One to show the history of payments made on the subject mortgage loan, and that the mortgage loan was in arrears as of August 1, 2012 and at the time of the acceleration of the mortgage loan on September 16, 2010.
The evidence furnished by defendant Elaine Lelekakis does not demonstrate that the mortgage loan was current at the time of the acceleration of the mortgage loan on September 16, 2010. Nor does defendant Elaine Lelekakis claim improper crediting of the prior payments. Under such circumstances, defendant Elaine Lelekakis has failed to raise a triable issue of fact as to whether the mortgage loan was in default as of August 1, 2010, or that she cured any such default relative to that installment within the grace period. Furthermore, once the mortgage was accelerated, plaintiff was not required to accept any tender in an amount less than the total amount due under the mortgage (see, Albertina Realty Co. v Rosbro Realty Corp., 258 NY 472 [1932]; First Federal Sav. Bank v Midura, 264 AD2d 407 [1999]; Albany Sav. Bank v Seventy-Nine Columbia St., 197 AD2d 816 [1993]). That Capital One cashed her check dated September 1, 2010, on September 16, 2010, the same date as the notice of default, does not constitute a waiver of the election to accelerate the mortgage debt, particularly where Capital One thereafter promptly refunded the payment (see, Bolmer Bros. v Bolmer Const. Co., 114 NYS2d 530 [1952]; cf. Central Natl. Bank of Canajoharie v Paton, 109 Misc 2d 42 [1981]).
In addition, defendant Elaine Lelekakis has failed to demonstrate the merits of any of her affirmative defenses asserted in her answer. Again, she has failed to demonstrate the mortgage loan was current and not in default at the time of the acceleration of the mortgage debt. To the extent she asserts lack of proper service of process, she failed to move to dismiss the complaint upon such ground within 60 days of service of a copy of the answer, and as a consequence, the defense is deemed waived (CPLR 3211[e]; DeSena v HIP Hosp., Inc., 258 AD2d 555 [1999]; Wade v Byung Yang Kim, 250 AD2d 323 [1998]; Fleet Bank, N.A. v Riese, 247 AD2d 276 [1998]).
To the extent that defendant Elaine Lelekakis asserts that the plaintiff violated RPAPL 1303, she has failed to show that the mortgaged premises consists of an owner-occupied one-to-four family dwelling. In addition, the action was commenced after the effective date of the amendment to RPAPL 1303 requiring service of a statutory notice to tenants (L 2009, c 507, subd. a). Nor has she shown that plaintiff failed to comply with any statutory, or contractual, conditional precedent to suit.
Defendant Elaine Lelekakis, therefore, has failed to come forward with any evidence showing [*4]the existence of a triable issue of fact in response to plaintiff's prima facie showing or as to the merits of any of her affirmative defenses. Plaintiff, therefore, is entitled to summary judgment against defendant Elaine Lelekakis, and to strike the answer with affirmative defenses of defendant Elaine Lelekakis (see, Cochran Inv. Co., Inc. v Jackson, 38 AD3d 704 [2007]; see also, Neighborhood Hous. Servs. of NY City, Inc. v Meltzer, 67 AD3d 872 [2009]). That branch of the motion seeking summary judgment against defendant Elaine Lelekakis and striking her answer and affirmative defenses is granted.
With respect to defendant John James Voyiatgis, as executor and trustee of the Estate of George Voyiatgis, since no opposition was filed, no triable issue of fact was raised in response to plaintiff's prima facie showing, or as to the merits of any of his affirmative defenses (see Flagstar Bank v Bellafiore, 94 AD3d 1044 [2012]; Wells Fargo Bank Minn., Natl. Assn. v Perez, 41 AD3d 590 [2012]). That branch of the motion seeking summary judgment against defendant John James Voyiatgis, as executor and trustee of the Estate of George Voyiatgis and striking his answer and affirmative defenses is granted.
That branch of the motion by plaintiff for leave to appoint a referee is granted.
Settle order.
_______________________________
J.S.C.
Dated: October 24, 2012
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