Emigrant Mtge. Co. Inc. v Berger
Annotate this CaseDecided on December 13, 2006
Supreme Court, Suffolk County
Emigrant Mortgage Company Inc., Plaintiff,
against
Andrew L. Berger, MINDY S. BERGER, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, UNITED STATES OF AMERICA 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
Index No.: 2006-18278
ATTORNEYS FOR PLAINTIFF
Berkman Henoch Peterson & Peddy P.C.
100 Garden City Plaza
Garden City, New York 11530
ATTORNEYS FOR DEFENDANTS BERGER
Costantino & Costantino Esqs.
632 Merrick Road
Copiague, New York 11726
Jeffrey Arlen Spinner, J.
The Plaintiff has commenced this action pursuant to Real Property Actions and Proceedings Law Article 13, seeking the foreclosure of a mortgage which encumbers real property located in Suffolk County New [*2][*3]York. In its Verified Complaint, the Plaintiff alleges that it is the owner and holder of a Note dated October 29, 2004 in the principal amount of $ 335,500.00 which is secured by a Mortgage, recorded with the Suffolk County Clerk in Liber 20991 of Mortgages at Page 852 encumbering real property located at 52 Derby Place, Smithtown, New York. The Defendants ANDREW L. BERGER and MINDY S. BERGER are the makers of and obligors upon both of those instruments. The Plaintiff further alleges that the said Defendants are in default of their obligations thereunder by failing and omitting to pay the March 1, 2006 payment as well as all subsequent installments. The Plaintiff has accelerated the obligation and demands foreclosure of the Mortgage. The Defendants have timely appeared
through counsel and have interposed an Answer consisting of denials together with six Affirmative Defenses asserting the existence of a forbearance agreement and extension of time for payment, breach of said forbearance agreement by the Plaintiff, failure to state a cause of action, wrongful rejection of valid tender by the Defendants, wrongful declaration of default and acceleration and improper service of process which deprives the Court of jurisdiction.
The Plaintiff has moved for summary judgment in accordance with the provisions of CPLR 3212, having filed a Notice of Motion and supporting papers dated September 15, 2006 and made returnable October 3, 2006. Counsel for the Defendants requested an adjournment for the purpose of obtaining documents from his client, who was ill, which was inexplicably refused by Plaintiff's counsel. Subsequently and on or about October 26, 2006, counsel for the Defendants submitted opposing papers with a cover letter indicating that his adjournment request was rejected by Plaintiff's counsel, thus resulting in the lateness of his papers. Counsel for the Plaintiff thereafter submitted a letter to the Court vehemently objecting to the Court's acceptance of the Defendant's papers to which the Defendant's counsel responded that he had been denied an adjournment. The tone of Plaintiff's counsel's letter reflects a commitment to form over substance, a position that is diametrically opposed to this Court's predilection for substance over form. Thereafter, the Plaintiff submitted reply papers under date of November 10, 2006. The Court, therefore, deems this matter to be fully submitted as of November 15, 2006, the next calendar date thereafter. That having been said, an examination of the merits is in order.
A careful review of all of the submissions herein reveals conflicting claims by both the Plaintiff and the Defendants. While the Plaintiff vigorously asserts that the Defendants are in default, the Defendants counter that claim by averring that the Plaintiff wrongfully refused their tender and they further claim the existence of a forbearance agreement.
It is settled law in New York that the initial burden is placed upon the proponent of an application for summary judgment as to making a prima facie case for entitlement to the relief sought, Norwest Bank Minnesota N.A. vs. Sabloff, 297 AD2d 722 (2nd Dept. 2002). Where, as here, the Plaintiff comes forward with the mortgage at issue together with the underlying note or bond and evidence of the alleged default, it establishes its prima facie right to judgment as a matter of law, Household Finance Realty Corporation of New York vs. Winn, 19 AD3d 544 (2nd Dept. 2005), Fleet National Bank vs. Olasov, 16 AD3d 374 (2nd Dept. 2005), leave to appeal dismissed 5 NY3d 849 (2005), Gateway State Bank vs. Shangri-La Private Club For Women, 113 AD2d 791 (2nd Dept. 1985), aff'd 67 NY2d 627 (1986). Once such a prima facie showing has been made, the burden shifts to the party opposing the application to come forward with sufficient evidence to controvert the summary judgment motion by demonstrating the existence of a genuine triable issue of fact, Barcov Holding Corp. vs. Bexin Realty Corp., 16 AD3d 282 ( 1st Dept. 2005).
Where as here, a defense of tender is interposed, such defense can only be sustained where the amount of the tender includes all sums to which the mortgagee is legally entitled, else the tender defense is devoid [*4][*5]of both equitable and legal efficacy, National Savings Bank vs. Hartmann, 179 AD2d 76 (3rd Dept., 1992). A tender, in order to be valid and subsisting, must consist of an actual proffer of all arrears due and owing up to the date of the tender, Bank of New York vs. Midland Avenue Development, 193 AD2d 641 (2nd Dept., 1993). Moreover, it is beyond any dispute that where a mortgagor defaults upon an obligation due to a mortgagee, even if only for as little as twenty four hours, the mortgagee has the right to accelerate the indebtedness, it may demand tender of payment in full and may commence legal proceedings against the defaulting party, New York Guardian Mortgagee Corp. vs. Olexa, 176 AD2d 399 (3rd Dept., 1991), Home Savings of America FSB vs. Isaacson, 240 AD2d 633 (2nd Dept. 1997).
Both the Plaintiff and the Defendants make reference in their papers to a forbearance agreement which, if sustained, would have the effect of modifying the obligation by extending the time for payment of the indebtedness by the Defendants. Such an agreement, in order to be enforceable, must be in writing and signed by the party to be charged, see General Obligations Law § 15-301, Metropolitan Bank of Syracuse vs. Brennan, 48 AD2d 254 (4th Dept. 1975). Here, all submissions indicate that such an agreement, if any, was in oral form and was not reduced to writing. Hence, any such forbearance agreement herein is unenforceable as violative of the Statute of Frauds..
On the other hand, where it is shown that the actions of the defaulting party were neither willful nor gross and where the same would nonetheless result in a forfeiture disproportionate to the default, equity may properly intervene, J.N.A. Realty Corp. vs. Cross Bay Chelsea, 42 NY2d 392 (1977). Too, where it is shown that the mortgagee may have acted in bad faith or in an unconscionable manner, equity may likewise intervene to do that which ought be done, Dime Savings Bank of New York vs. Norris, 78 AD2d 691 (2nd Dept. 1980). The Defendants have not shown that the Plaintiff has acted in bad faith nor have they demonstrated some special circumstance which would allow equity to intervene.
As to the claim of non-service of the summons herein, the Defendants have not advanced any admissible proof sufficient to support that claim and the same is therefore denied by the Court. Likewise, the Defendants have not sustained their burden of proof as to the remaining Affirmative Defenses and the same must be stricken.
The Court does, however, take issue with the Reply Affirmation of Henry P. DiStefano Esq., specifically counsel's presumptuous and stentorian admonition to the Court that its ruling must be based upon the law and cannot be grounded in sympathy for the plight of the Defendants. The Court is fully cognizant of its obligation to make its determinations in strict compliance with the applicable law and has always adhered to that commitment. The Court finds counsel's donnish and hubristic reprobation to be both wholly inappropriate and grievously unprofessional.
Where, as here, the Defendants raise an issue of the amount of the default and the existence of the default is not disproven (indeed the Defendant's Affidavit admits the existence of a default), the appointment of a Referee to compute in accordance with RPAPL § 1321 is appropriate.
Accordingly, the Plaintiff's application for summary judgment is granted, the Answer and Defenses of the Defendants are stricken and deemed to be a Notice of Appearance & Demand For Service Of All Papers. A Referee to compute pursuant to RPAPL § 1321 is appointed by separate Order simultaneously herewith. [*6][*7]
It is, therefore,
ORDERED that the Plainitff's application for summary judgment is hereby granted; and it is further
ORDERED that the Answer heretofore interposed by the Defendants ANDREW L. BERGER and MINDY S. BERGER is hereby stricken and deemed to be a Notice Of Appearance & Demand For Service Of All Papers in this action, entitling them to notice of all future proceedings under this index number; and it is further
ORDERED that the application of the Plaintiff for appointment of a Referee to compute is hereby granted, the Referee to be appointed by separate Order of even date herewith; and it is further
ORDERED that Plaintiffs' counsel shall promptly serve a copy of this Order with Notice of Entry upon all parties and counsel who have appeared in this action.
Dated: 13 December 2006
Riverhead, New York
E N T E R:
______________________________________
JEFFREY ARLEN SPINNER, J.S.C.
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