BP3 Capital LLC v Yosupov

[*1] BP3 Capital LLC v Yosupov 2010 NY Slip Op 52202(U) [29 Misc 3d 1239(A)] Decided on December 21, 2010 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2010
Supreme Court, Queens County

BP3 Capital LLC, Plaintiff,

against

Raman Yosupov, et al., Defendants.



14568/2009



Appearances of Counsel:

For the Plaintiff: Koven & Krausz, by Murray T. Koven, Esq., 350 Fifth Ave., New York,NewYork 10118

Defendants Raman Yosupov and Riva Yosupov: appearing pro se

Charles J. Markey, J.

Plaintiff commenced this foreclosure action alleging it is the holder of a mortgage given by defendants Raman Yosupov and Riva Yosupov with respect to the real property known as 67-32 Burns Street, a/k/a 67-34 Burns Street, Forest Hills, Queens County, New York, to secure a note evidencing their obligations to plaintiff in the principal amount of $350,000.00, plus interest. Plaintiff alleges that defendants Yosupov have defaulted under the terms of the mortgage by failing to make interest payments due on April 1, 2009, and May 1, 2009, and that plaintiff elects to accelerate the mortgage debt.

Plaintiff previously moved for summary judgment against defendant Raman Yosupov, to strike his answer and deem it to be a notice of appearance, for leave to appoint a referee to compute, and for leave to amend the caption. By order dated May 21, 2010, the Court denied that branch of the motion for summary judgment against defendant Raman Yosupov insofar as plaintiff failed to present a complete copy of the subject mortgage. Defendant Riva Yosupov was granted leave to serve a late answer as proposed.

The joint amended answer submitted by defendants Yosupov, appearing pro se, in opposition to the motion, was deemed served by defendants Yosupov. That branch of the motion by plaintiff to strike the original answer of defendant Raman Yosupov was denied as moot. That branch of the motion for leave to appoint a referee was denied at that juncture. That branch of the motion for leave to amend the caption was granted.

Plaintiff moves, in effect, for leave to renew the branch of its prior motion which sought summary judgment against defendant Raman Yosupov, and upon renewal, for summary judgment against defendant Raman Yosupov, and in addition, moves for summary judgment as to defendant Riva Yosupov, to strike their joint answer and deem it to be a notice of appearance, and for leave to appoint a referee. In support of this motion, plaintiff submits, among other things, a complete copy of the mortgage and note, a copy of the pleadings, and an affidavit of Howard Wasserman, a managing member of plaintiff, attesting to the default in payment by [*2]defendants Yosupov of the monthly interest payment due on April 1, 2009.

Defendants Yosupov, appearing pro se, oppose the motion.

That branch of the motion for leave to renew that branch of the prior motion for summary judgment as against defendant Raman Yosupov is granted. With respect to the branch of the motion by plaintiff for summary judgment against defendants Yosupov, 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]; Zuckerman v City of New York, 49 NY2d 557 [1980]).

By their submissions, plaintiffs have established their entitlement to summary judgment as against defendants Yosupov (see, EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370 [2nd Dept. 2002]; Paterson v Rodney, 285 AD2d 453 [2nd Dept. 2001]). The burden, therefore, shifts to defendants Yosupov to demonstrate the existence of a triable issue of fact (see, Zuckerman v City of New York, 49 NY2d 557 [1957], supra ; Barcov Holding Corp. v Bexin Realty Corp., 16 AD3d 282 [1st Dept. 2005]; EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370, supra ; First Nationwide Bank, FSB v Goodman, 272 AD2d 433 [2000]).

In opposition to the motion, defendants Yosupov have provided a document, which is, in effect, an unsworn copy of their unverified answer. To the extent they assert a first and second affirmative defense based upon the equitable doctrines of waiver, laches, ratification, estoppel, release, and unjust enrichment, defendants Yosupov have failed to allege or prove any facts supporting such defenses (see, Bank of America, N.A. v 414 Midland Avenue Associates, LLC,AD3d, 2010 WL 4540645, 2010 NY Slip Op 08053 [2nd Dept. 2010]; Glenesk v Guidance Realty Corp., 36 AD2d 852 [2nd Dept. 1971], abrogated on other grounds by Butler v. Catinella, 58 AD3d 145 [2nd Dept. 2008]; accord, Cellupica v Bruce, 48 AD3d 1020, 1021 [3rd Dept. 1971]).

To the extent defendants Yosupov also assert, as a third affirmative defense, that they reserve their right to assert further affirmative defenses and counterclaims, such an alleged and conclusory reservation of rights does not constitute a valid affirmative defense to a foreclosure action (see, Vigna v Galeano, 2008 WL 203757, 2008 NY Slip Op 50148[U] [NYC Civ Ct New York County 2008].

Moreover, the failure to assert a valid affirmative defense in an answer constitutes a waiver of such defense, except for those affirmative defenses based upon lack of subject matter jurisdiction, failure to state a cause of action, and failure to join a necessary party (CPLR 3211[e]). Thus, that branch of the motion for leave to strike the answer of defendants Yosupov is granted only to the extent of dismissing their affirmative defenses.

Defendants Yosupov have failed to come forward with any evidence showing the existence of a triable issue of fact with respect to plaintiff's prima facie showing. Plaintiffs are entitled to summary judgment as against defendants Yosupov (see, CPLR 3212). That branch of the motion seeking summary judgment as against defendants Yosupov is granted. That branch of the motion for leave to appoint a referee is granted.

Settle order. [*3]

Dated: December 21, 2010

J.S.C.