Community Preserv. Corp. v Wadsworth Condos, LLC

[*1] Community Preserv. Corp. v Wadsworth Condos, LLC 2012 NY Slip Op 52093(U) Decided on March 9, 2012 Supreme Court, New York County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2012
Supreme Court, New York County

Community Preservation Corporation, Plaintiff

against

Wadsworth Condos, LLC, CARNEGIE HOLDINGS, LLC, 43 PARK OWNERS GROUP, LLC, INWOOD EQUITIES GROUP, INC., SPARROW CONSTRUCTION CORP., PERRY FINKELMAN, MARK ENGEL, ELI BOBKER, BEN BOBKER, and JOHN DOE No.1 through JOHN DOE #12, the last twelve names being fictitious and unknown to plaintiff, 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, Defendants



114865/2009



For Plaintiff

Bruce J. Bergman Esq.

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C.

100 Garden City Plaza, Garden City, NY 11530

For Defendants Wadsworth Condos, LLC, Carnegie Holdings, LLC, Eli Bobker, and Ben Bobker

Peter R. Ginsberg Esq.

Ginsberg & Burgos PLLC

12 East 49th Street, New York, NY 10017

For Defendants 43 Park Owners Group, LLC, Perry Finkelman, and Mark Engel

Bruce Yukelson Esq.

Wolfe & Yukelson PLLC

14 Vanderventer Avenue, Port Washington, NY 11050

For Defendant Inwood Equities Group, Inc.

David H. Cohen Esq. For Defendant Sparrow Construction Corp.

Joshua G Oberman Esq.

Goetz Fitzpatrick LLP

1 Penn Plaza, New York, NY 10119

Lucy Billings, J.

This action, for foreclosure of 1 Wadsworth Terrace, New York, New York, first requires untangling the parties' complicated relationships and claims. Defendants Wadsworth Condos, LLC, and Carnegie Holdings, LLC, were the sole owners of the property until July 6, 2005, when they conveyed a 20% interest in the property to defendant 43 Park Owners Group, LLC. These three defendants entered a management agreement to govern the development of condominiums on the property. Wadsworth Condos, Carnegie Holdings, and their guarantors Eli and Ben Bobker (Bobker defendants) interpret the management agreement as imposing responsibility on 43 Park Owners Group's principals, defendants Perry Finkelman and Mark Engel, for managing the project's construction activities, records, and accounts.

Later in 2005 Wadsworth Condos, Carnegie Holdings, and 43 Park Owners Group executed notes and mortgages on the property separately with plaintiff and with defendant Inwood Equities Group, Inc. Inwood Equities Group concedes its mortgage is subordinate to plaintiff's. Eli Bobker, a managing member, and Ben Bobker, an owner of a beneficial share, of Wadsworth Condos, and Finkelman and Engel, managing members of 43 Park Owners Group, each personally guaranteed the notes.

II.THE PARTIES' CLAIMS AND POSITIONS

Along with the Bobker defendants' affirmative defenses to plaintiff's foreclosure action, the Bobker defendants cross-claim against 43 Park Owners Group, Finkelman, and Engel (43 Park Owners defendants). Junior mortgagee Inwood Equities cross-claims for foreclosure against defendants Wadsworth Condos, Carnegie Holdings, Eli Bobker, Ben Bobker, 43 Park Owners Group, Perry Finkelman, and Mark Engel. Defendant Sparrow Construction Corp., holder of a mechanic's lien on the property, impleaded third party defendant ADG Wadsworth Construction Group, LLC, claiming its breach of a contract that formed the basis for Sparrow Construction's lien. Sparrow Construction also counterclaims and cross-claims for foreclosure of that mechanic's lien against plaintiff, defendants Wadsworth Condos, Carnegie Holdings, and 43 Park Owners Group, LLC, and third party defendant ADG Wadsworth Construction Group. 43 Park Owners Group cross-claims against Sparrow Construction for wilful exaggeration of the lien.

Plaintiff has moved for summary judgment on plaintiff's foreclosure claim and to sever the cross-claims and third party action. The Bobker defendants oppose plaintiff's motion for summary judgment as premature because the parties have not yet conducted disclosure. Inwood Equities opposes severance, but does not oppose summary judgment. Sparrow Construction has released its lien and supports severance.

Sparrow Construction also asks the court to search the record to grant summary judgment dismissing 43 Park Owners Group's cross-claim against Sparrow Construction for wilful exaggeration of a lien. 43 Park Owners Group opposes dismissal of its cross-claim, but does not oppose plaintiff's motion.

After submission of plaintiff's motion, the Bobker defendants moved to reopen the record for summary judgment, to include new documentary evidence they had uncovered through disclosure in a separate but related action against the 43 Park Owners defendants. The court grants this second motion, includes the new evidence in the record for summary judgment, and [*2]considers that evidence for that purpose. Tierney v. Girardi, 86 AD3d 447, 448 (1st Dep't 2011); Ashton v. D.O.C.S. Continuum Med. Group, 68 AD3d 613 (1st Dep't 2009).

III.SUMMARY JUDGMENT

In deciding a motion for summary judgment on any issues, the court may search the record and grant summary judgment on those issues to any party entitled to judgment even if that party has not moved for that relief. C.P.L.R. § 3212(b); Maheshwari v. City of New York, 2 NY3d 288, 293 n.2 (2004); Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 NY2d 106, 111 (1984); JPMorgan Chase Bank, N.A. v. Rocar Realty Northeast, Inc., 80 AD3d 429, 430 (1st Dep't 2011). As discussed below, however, summary judgment to any party may be premature when disclosure has not been conducted and evidence raising questions of fact may be in the exclusive control of the party seeking summary judgment. C.P.L.R. § 3212(f). E.g., Abramson v. Eden Farm, Inc., 70 AD3d 514 (1st Dep't 2010). A.The Evidence Supporting Plaintiff's Claims and Defendants' Defenses

Plaintiff establishes a prima facie claim for foreclosure by presenting evidence, authenticated on personal knowledge, Aff. of Helen Rudolph (Feb. 5, 2010), of plaintiff's mortgage, defendant mortgagors' underlying promissory notes, and the mortgagors' default of each. Red Tulip, LLC v. Neiva, 44 AD3d 204, 209 (1st Dep't 2007); Witelson v. Jamaica Estates Holding Corp. I, 40 AD3d 284 (1st Dep't 2007); Citidress II v. 207 Second Ave. Realty Corp., 21 AD3d 774, 776 (1st Dep't 2005). Plaintiff's prima facie claim also disposes of the Bobker defendants' first affirmative defense of failure to state a claim. Red Tulip, LLC v. Neiva, 44 AD3d at 209; Citidress II v. 207 Second Ave. Realty Corp., 21 AD3d at 776; Cochran Inv. Co., Inc. v. Jackson, 38 AD3d 704, 705 (2d Dep't 2007).

The Bobker defendants' second and third affirmative defenses claim plaintiff's action and omissions diminished the Bobker defendants' ownership interest, barring plaintiff from recovering based on its unclean hands. Alden State Bank v. Sunrise Bldrs., Inc., 48 AD3d 1162, 1165 (4th Dep't 2008); Canterbury Realty & Equip. Corp. v Poughkeepsie Sav. Bank, 135 AD2d 102, 107 (3d Dep't 1998). See Connecticut Natl. Bank v. Peach Lake Plaza, 204 AD2d 909, 911 (3d Dep't 1994). Plaintiff's alleged conduct directly relates to the mortgage plaintiff seeks to foreclose, to the reason for the initial loan, and to the Bobker defendants' claimed reasons for their inability to repay the loans. Blueberry Invs. Co. v. Ilana Realty, 184 AD2d 906, 907 (3d Dep't 1992). Although a guaranty expressly waiving all defenses other than actual payment would bar the defense of unclean hands against a foreclosure, plaintiff does not claim such a blanket waiver of defenses in this case. See Red Tulip, LLC v. Neiva, 44 AD3d at 207. A showing that plaintiff wrongfully caused defendants' default, moreover, may survive even a waiver of defenses. Id. at 211; Canterbury Realty & Equip. Corp., 135 AD2d at 106.

Nonetheless, the Bobker defendants present no evidence that plaintiff colluded with the 43 Park Owners defendants or otherwise wrongfully caused the mortgagors' default. The emails with which the court has permitted the Bobker defendants to supplement the record show only that defendants Finkelman and Engel communicated with plaintiff regarding the financing of the project. The Bobker defendants themselves claim that Finkelman and Engel undertook managerial responsibilities for the project. The affidavit of Eli Bobker, part of the Bobker defendants' original opposition to plaintiff's motion for summary judgment, similarly attests only that Finkelman and Engel worked with plaintiff fulfilling the very managerial responsibilities that the Bobker defendants ascribe to Finkelman and Engel. Aff. of Eli Bobker ¶¶ 4, 6 (Mar. 11, 2010). The Bobker defendants present no evidence that they were harmed by any of plaintiff's actions or by defendants Finkelman and Engel communicating with plaintiff. Even if plaintiff, Finkelman, and Engel discussed or made unauthorized changes to the development plan, the Bobker defendants do not show that such changes caused the default. [*3]

Similarly, no evidence supports the Bobker defendants' fourth affirmative defense of equitable estoppel, which requires defendants to show they relied on plaintiff's promise or actions to defendants' detriment. Shondel J. v. Mark D., 7 NY3d 320, 326 (2006); Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., Ltd., 7 NY3d 96, 106-107 (2006); Provident Loan Socy. of NY v. 190 E. 72nd St. Corp., 78 AD3d 501, 503 (1st Dep't 2010); Siger v. Rich, 308 AD2d 235, 242 (1st Dep't 2003). Eli Bobker does attest that he and Ben Bobker relied on an engineering report, prepared by an engineer whom plaintiff retained, that turned out to be inaccurate. Bobker Aff. ¶ 8. Eli Bobker does not attest, however, and no other evidence indicates, that the inaccurate report caused or was linked in any way to the default. The Bobker defendants' related fifth affirmative defense of waiver fails because plaintiff's mortgage and its underlying notes expressly preclude waiver of the terms of the mortgage or notes.

B.The Bobker Defendants Have Not Shown an Entitlement to Further Disclosure.

The Bobker defendants may not forestall summary judgment to conduct further disclosure, because they have made no showing that further disclosure would lead to evidence under plaintiff's exclusive control regarding its relationship or collusion with the 43 Park Owners defendants or otherwise supporting the Bobker defendants' defenses. Ehrenhalt v. Kinder, 85 AD3d 553 (1st Dep't 2011); Duane Morris LLP v. Astor Holdings Inc., 61 AD3d 418 (1st Dep't 2009); Voluto Ventures, LLC v. Jenkens & Gilchrist Parker Chapin LLP, 44 AD3d 557 (1st Dep't 2007); Saratoga Assoc. Landscape Architects, Architects, Engrs. & Planners, P.C. v. Lauter Dev. Group, 77 AD3d 1219, 1222 (3d Dep't 2010). This conclusion is all the more warranted after the Bobker defendants already obtained disclosure, in a related action, of evidence they insisted was relevant to a relationship or collusion between plaintiff and the 43 Park Owners defendants; were allowed to supplement this summary judgment record with that disclosure; and still failed to mount a defense. C.43 Park Owners Group's Claim for Wilful Exaggeration of a Lien

Because New York Lien Law § 39-a imposes a penalty, the statute must be strictly construed. Wellbilt Equipment Corp. v. Fireman, 275 AD2d 162, 169 (1st Dep't 2000); Saratoga Assoc. Landscape Architects, Architects, Engrs. & Planners, P.C. v.Lauter Dev. Group, 77 AD3d at 1223; Guzman v. Estate of Fluker, 226 AD2d 676, 678 (2d Dep't 1996). The court may not award damages for wilful exaggeration of a lien unless it has been discharged or vacated for that reason. NY Lien Law §§ 39, 39-a; Wellbilt Equipment Corp. v. Fireman, 275 AD2d at 167; Saratoga Assoc. Landscape Architects, Architects, Engrs. & Planners, P.C. v.Lauter Dev. Group, 77 AD3d at 1223; Guzman v. Estate of Fluker, 226 AD2d at 678. Damages are unauthorized both when the parties have stipulated to release the lien, Wellbilt Equipment Corp. v. Fireman, 275 AD2d at 167, and when the court has vacated the lien before determining the wilful exaggeration claim. Saratoga Assoc. Landscape Architects, Architects, Engrs. & Planners, P.C. v. Lauter Dev. Group, 77 AD3d at 1223; Guzman v. Estate of Fluker, 226 AD2d at 678. If the lienor avoids a wilful exaggeration claim through an involuntary vacatur of the lien for a reason other than wilful exaggeration, then Sparrow Construction's voluntary release of its lien may not be accorded any less effect.

Upon a search of the record, Sparrow Construction's voluntary release of the lien provides grounds to grant summary judgment to Sparrow Construction dismissing 43 Park Owners Group's cross-claim against Sparrow Construction for wilful exaggeration of a lien. C.P.L.R. § 3212(b); NY Lien Law §§ 39, 39-a; Wellbilt Equipment Corp. v. Fireman, 275 AD2d at 169; Saratoga Assoc. Landscape Architects, Architects, Engrs. & Planners, P.C. v. Lauter Dev. Group, 77 AD3d at 1223; Guzman v. Estate of Fluker, 226 AD2d at 678. Because Sparrow Construction voluntarily released the lien, it was not discharged based on wilful exaggeration, rendering further disclosure regarding wilful exaggeration purposeless. [*4]

III.SEVERANCE A.Sparrow Construction

Because Sparrow Construction has released its lien, this defendant is no longer a necessary party to this action. C.P.L.R. § 1001(a); R.P.A.P.L. § 1311(3). Sparrow Construction no longer retains a lien on the property, nor does Sparrow Construction's claim for breach of contract against third party defendant ADG Wadsworth Construction arise out of the same transaction, occurrence, or series of transactions or occurrences as plaintiff's claim for foreclosure of its mortgage or for payment of its note. C.P.L.R. § 1002; R.P.A.P.L. § 1311(3). After this decision, Sparrow Construction's third party action against ADG Wadsworth Construction no longer even shares parties in common with the remaining main action. Requiring the third party claim to be tried with the remaining claims in this action would inconvenience and prejudice all parties by requiring them to litigate claims that bear no relation to their own claims. C.P.L.R. § 603. The court therefore dismisses Sparrow Construction as a defendant in this action and severs the third party action. Id.

B.Inwood Equities

As a junior mortgagee, defendant Inwood Equities is a necessary party to plaintiff's action for foreclosure. C.P.L.R. § 1001(a); R.P.A.P.L. § 1311(3). Although Inwood Equities' cross-claim for foreclosure involves a different promissory note and mortgage, its cross-claim necessarily involves the same parties as plaintiff's action, R.P.A.P.L. § 1311(3), and involves common issues such as the valuation and sale of the mortgaged premises. It therefore serves the convenience of all remaining parties and prejudices no one to keep Inwood Equities' claims with the remaining claims and deny any severance. C.P.L.R. § 603.

C.The Bobker Defendants' Cross-Claims Against the 43 Park Owners Defendants

The Bobker defendants' cross-claims against the 43 Park Owners defendants do not involve any parties that are not also parties to plaintiff's action. Moreover, the Bobker defendants' cross-claims involve many of the same underlying facts as plaintiff's action for foreclosure. Keeping plaintiff's action and the Bobker defendants' cross-claims together in one action therefore serves all remaining parties' convenience and does not prejudice any party. C.P.L.R. § 603.

IV.CONCLUSION

For the foregoing reasons, after granting the motion by defendants Wadsworth Condos, LLC, Carnegie Holdings, LLC, Eli Bobker, and Ben Bobker to supplement the record, the court grants plaintiff's motion for summary judgment. C.P.L.R. § 3212(b). The court also grants plaintiff's motion for severance to the extent of severing the third party action against Sparrow Construction Corp. C.P.L.R. §§ 603, 1001(a), 1002; R.P.A.P.L. § 1311(3). The court otherwise denies plaintiff's motion. Finally, the court grants summary judgment to defendant Sparrow Construction dismissing the cross-claim by 43 Park Owners Group, LLC, against Sparrow Construction. C.P.L.R. § 3212(b).

DATED: March 9, 2012

LUCY BILLINGS, J.S.C.