Empire State Bank, N.A. v DiMattina

[*1] Empire State Bank, N.A. v DiMattina 2010 NY Slip Op 50050(U) [26 Misc 3d 1210(A)] Decided on January 6, 2010 Supreme Court, Richmond County Aliotta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 6, 2010
Supreme Court, Richmond County

Empire State Bank, N.A., Plaintiff,

against

Marie DiMattina a/k/a MARIA ELAINA DIMATTINA, BNB BANK NATIONAL ASSOCIATION f/k/a BROADWAY NATIONAL BANK, FRANK DIMATTINA, JR., FAM BUSINESS CORP. and "JOHN DOE No.1" through "JANE DOE #10", the last 10 names being fictitious and unknown to the Plaintiff, the persons or parties intended being the occupants, tenants, persons or entities, if any, having or claiming an interest in or lien upon the mortgaged premises described in the verified complaint, Defendants.



104760/08

Thomas P. Aliotta, J.

Plaintiff's motion (No. 1532) for summary judgment, striking the answer of defendant BNB Bank National Association, appointing a referee to compute, and amending the caption of this proceeding is granted; the cross motion (No. 2508) by defendant BNB Bank National Association to dismiss the complaint pursuant to CPLR 3211(a)(10) and RPAPL §1311 for failure to join a necessary defendant, or alternatively, to consolidate this action with its pending foreclosure action is denied.

The within foreclosure action was commenced on December 3, 2008 by plaintiff Empire State Bank, N.A. (hereinafter "Empire"), the holder of (1) a recorded $200,000.00 note and related mortgage dated June 26, 2006 on certain piece of commercial property known as Block 4212, Lots 33 and 36, located at 100 New Dorp Plaza, Staten Island, New York, and (2) a recorded $50,000 note and related mortgage dated September 1, 2006 on Block 4212, Lot 36. In its complaint, Empire seeks to foreclose its claimed first mortgages on Lot 36 of Block 4212 (hereinafter "Empire's Lot 36 Action"), which is a vacant parcel improved only by a parking lot used in connection with the commercial building situated on the adjoining parcel, Lot 33. Defendants Marie DiMattina, Frank DiMattina, Jr. and Fam Business Corp. have appeared in this action but have not answered the complaint; defendant BNB Bank National Association (hereinafter "BNB") has interposed an answer, inter alia, asserting that its mortgage lien on Lot 36 is superior to plaintiff's, and claiming that there is another unnamed person who is a necessary party to this action.

Pertinently, and by way of background, defendant BNB Bank National Association (hereinafter "BNB") is the holder of a recorded $1,000,000.00 note and purchase money mortgage dated December 8, 2004 which also relates to100 New Dorp Plaza, however, it only encumbers Lot 33. Prior to the commencement of this proceeding, BNB commenced two parallel actions to foreclose its claimed first mortgages on Lots 33 and Lot 36. Thus, on June 30, 2008, it commenced an action to foreclose its mortgage lien on Lot 33 (hereinafter "BNB's First Action"), and on October 21, 2008, commenced a second action to foreclose its purported mortgage lien on both Lots 33 and 36 (hereinafter "BNB's Second Action").

Insofar as it appears on the papers before this Court, a motion for judgment of foreclosure and sale, and a cross motion by defendant/subordinate mortgagee Empire for any surplus monies was submitted without opposition in BNB's First Action (bearing Index No. 102999/08), and a judgment of foreclosure and sale was granted on August 13, 2009. As for BNB's Second Action [*2](bearing Index No.104387/08), Empire answered the complaint alleging, inter alia, that its mortgage on Lot 36 constitutes a superior lien and that BNB does not have a valid mortgage thereon.

In opposition to Empire's motion for summary judgment in this Second Action, the latter cross-moved to dismiss the complaint claiming that Empire's failure to join a necessary party, i.e., Barry Crupi, a purported subordinate mortgagee on Lot 33, rendered the action "jurisdictionally deficient". More particularly, BNB point to a certain recorded mortgage dated February 1, 2008 and relating to Lots 27, 30, 33 and 36, given by defendant Marie DiMattina to Barry Crupi to secure a contemporaneous loan in the amount of $150,000.00. According to BNB, although a satisfaction of the Crupi mortgage was recorded on May 22, 2008, that document purports to release only Lots 27, 30 and 33. In defendant's view, this omission of Lot 36 was "intended" to provide Mr. Crupi with "additional collateral" for a prior unsatisfied mortgage dated November 22, 2006, given to him by Maria DiMattina on Lot 33 to secure a previous $150,000.00 loan. It is argued that since the February 1, 2008 Crupi mortgage remains unsatisfied as of record, this "open lien" on Lot 36 will depress or eliminate bids and the prospect of deriving a surplus upon the foreclosure sale of this lot.

In further opposition, defendant BNB submits the affidavit of its senior vice president, Ted Morgan, who attests that at the time of the closing of title to the commercial premises occupying Lots 33 and 36 (i.e., on December 8, 2004), "BNB believed" that the purchase money mortgage it received from its borrower, Maria DiMattina, as collateral for its $1,000,000.00 loan to her constituted a first lien on Tax Lots 33 and 36. According to the affiant, unbeknownst to BNB, the mortgage that was conveyed by its borrower and subsequently recorded contained only the legal description of Lot 33. According to BNB, it was only subsequent to Marie DiMattina's default more than three years later, i.e., on or about April 1, 2008, that it learned that Lot 36 was "inadvertently" excluded from their original purchase money mortgage. Accordingly, in a claimed attempt to rectify this "error" and acquire a first mortgage lien on Lot 36 as well, BNB re-recorded a purported "corrected/modified mortgage" with the Office of the County Clerk on May 20, 2008 which expressly provided that its commercial mortgage dated December 8, 2004 "is being re-recorded to add an additional page of Schedule A and include the parcel identified as...Block 4212 Lot 36, which was erroneously excluded at the time of recording." The re-recorded documents consisted of the originally executed mortgage along with an additional Schedule "A" specifically identifying Lot 36. However BNB's "corrected" mortgage was not re-executed by the purported mortgagor, Marie DiMattina, and no evidence has been presented as to her consent to convey to BNB a mortgage interest on Lot 36, nunc pro tunc.

Here, it is the opinion of this Court that the plaintiff/mortgagee, Empire, has demonstrated its prima facie entitlement to judgment as a matter of law in the foreclosure action on Lot 36 by tendering the mortgage and note, and proof of defendant Maria DiMattina's default in the form of an affidavit from its president, Philip Guarnieri (see Chiarelli v Kotsifos, 5 AD3d 345, 345-346; Charter One Bank v Houston, 300 AD2d 429, 430, lv dismissed 99 NY2d 651; JP Morgan Chase Bank, N.A. v Agnello, 62 AD3d 662, 663). In opposition, the issues raised by defendant BNB are legally insufficient to rebut Empire's prima facie case, and are entirely devoid of merit. Moreover, the affirmative defenses raised in its answer are wholly conclusory and unsubstantiated by any assertions of purported facts or competent evidence. Therefore, it is insufficient to defeat plaintiff's motion for summary judgment as to Lot 36 ( see Charter One Bank v Houston, 300 AD2d at 430).

With regard to BNB's claim that Empire has failed to name a necessary party defendant, the general rule is that "[t]he absence of necessary party in a foreclosure action leaves that party's rights unaffected by the judgment and sale, and the foreclosure sale may be considered void as to the omitted party" (1426 46 St. LLC v Klein, 60 AD3d 740, 742; see Glass v Estate of Gold, 48 AD3d 746, 747; Board of Mgrs. of Parkchester N. Condominium v Alaska Seaboard Partners Ltd. Partnership, 37 AD3d 332, 333). Consonant with the foregoing, assuming arguendo, that Mr. Crupi is a necessary party in Empire's foreclosure action, he is not an indispensable party whose absence mandates dismissal. Rather, he is a subordinate lienholder whose rights, if any, will be unaffected by the judgment of foreclosure and sale entered in favor of Empire (CPLR 1001[b]; see Glass v Estate of Gold, 48 AD3d at 746-747; Scharaga v Schwartzberg, 149 AD2d 578, 579-580; Polish [*3]Natl. Alliance of Brooklyn v White Eagle Hall Co., 98 AD2d 400, 406). In any event, the papers suggest that the recorded satisfaction fully discharges the Crupi mortgage dated February 1, 2008, including Lot 36. As a result, this mortgage no longer constitutes a subordinate lien on Lot 36 as defendant BNB contends.

BNB's claim that its purported re-recording of the mortgage vested it with a valid first lien on Lot 36 is defective since (1) there is no evidence that this was a bona fide conveyance by the mortgagor to BNB, and (2) BNB's alleged recording thereof was subsequent to the recording of the Empire mortgages, and therefore incapable of providing Empire with actual or constructive notice of BNB's claimed superior mortgage interest in Lots 33 and 36 (see Coco v Ranalletta, 305 AD2d 1082, 1082-1083). As such, even assuming that BNB's encumbrance on Lot 36 is valid, it is nevertheless subordinate to Empire's. BNB's alternate assertion that Empire had actual knowledge of its lien, i.e., that it "must have known that BNB's mortgage was intended to encumber Lot 36," is speculative and without evidentiary value.

Consonant with the foregoing, consolidation of BNB's Second Action (Index No. 104387/08) with Empire's Lot 36 Action is unwarranted.

Defendant BNB's remaining contentions have been considered and found to be without merit.

Accordingly, plaintiff's motion for summary judgment is granted in its entirety; and it is further

ORDERED, that defendant's cross motion is denied.

Submit Order.

E N T E R :

Dated: January 6, 2010_/s/________________________

Hon. Thomas P. Aliotta

J.S.C.