Capital One, N.A. v Arthur Realty Group LLC

[*1] Capital One, N.A. v Arthur Realty Group LLC 2010 NY Slip Op 52284(U) [30 Misc 3d 1204(A)] Decided on June 7, 2010 Supreme Court, Bronx 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 7, 2010
Supreme Court, Bronx County

Capital One, N.A., successor by merger to To North Fork Bank, Plaintiff

against

Arthur Realty Group LLC, New York City Environmental Control Board, Certified Lumber & Home Center, New York City Transit Adjudication Bureau, MW Cell Reit 1 LLC, "John Doe" and "Jane Doe," said names being fictitious, parties intended being possible tenants or occupants of premises, Defendants



381945/2008



For Plaintiff

Joseph C. Savino Esq. and Jennifer L. Silvestro Esq.

Lazer, Aptheker, Rosella & Yedid, P.C.

Melville Law Center, 225 Old Country Road, Melville, NY 11747

For Defendant Arthur Realty Group LLC

Mark F. Heinze Esq.

Ofeck & Heinze, LLP

230 Grand Street, New York, NY 10013

Lucy Billings, J.

I.BACKGROUND

Plaintiff sues to foreclose on premises at 2110 Arthur Avenue, Bronx, New York. Plaintiff served all defendants, including the premises' tenants and occupants named in the complaint as "John Doe" and "Jane Doe." No defendant other than Arthur Realty Group LLC has answered. Plaintiff claims it subsequently learned the true names of the tenants and occupants, yet plaintiff never re-served the Doe defendants with a summons and complaint naming these defendants by their true names. Plaintiff also subsequently identified Superior Maintenance USA Corp. as the holder of a mechanic's lien against 2110 Arthur Avenue. Plaintiff served Superior Maintenance with a summons and complaint as a John Doe defendant.

Plaintiff now moves for summary judgment against Arthur Realty or to dismiss its affirmative defense, to appoint a referee, and to amend the summons and complaint to substitute the true names of the building's tenants and occupants and Superior Maintenance for the Doe defendants. C.P.L.R. §§ 1024(a), 3211(b), 3212(b); R.P.A.P.L. § 1321. For the reasons explained below, the court grants plaintiff's motion to amend the summons and complaint to [*2]reflect the intended defendants' true names and grants plaintiff's motion to dismiss Arthur Realty's affirmative defense. C.P.L.R. §§ 1024(a), 3211(b). The court denies, without prejudice to a future motion for similar relief after joinder of necessary parties and joinder of issue, plaintiff's motion for summary judgment and appointment of a referee. C.P.L.R. §§ 3212(a) and(b); R.P.A.P.L. § 1321.

II.TIMELINESS OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

A motion for summary judgment is premature until after joinder of issue by service of an answer and joinder of all necessary parties. C.P.L.R. § 3212(a); White House Manor, Ltd. v. Benjamin, 11 NY3d 393, 400-401 (2008); City of Rochester v. Chiarella, 65 NY2d 92, 101 (1985); Northern Funding, LLC v. 244 Madison Realty Corp., 41 AD3d 182, 183 (1st Dep't 2007); Sonny Boy Realty, Inc. v. City of New York, 8 AD3d 171, 172 (1st Dep't 2004). The tenants of 2110 Arthur Avenue are necessary parties to this action. R.P.A.P.L. § 1311(1). Even when expiration of a statute of limitations is not at issue, plaintiff must show a genuine attempt to learn defendants' true names before resorting to fictitious names. E.g., Capital Resources Corp. v. Doe, 154 Misc 2d 864, 865 (Civ. Ct. Kings Co. 1992). Absent a showing that plaintiff made any genuine attempt to learn the names of the tenants at the premises before resorting to fictitious names in the summons and complaint, plaintiff has not effectively joined the tenants. C.P.L.R. § 1024(a); Goldberg v. Boatmax://, Inc., 41 AD3d 255, 256 (1st Dep't 2007); Opiela v. May Indus. Corp., 10 AD3d 340, 341 (1st Dep't 2004); Tucker v. Lorieo, 291 AD2d 261 (1st Dep't 2002).

As a lienholder, Superior Maintenance is also a necessary party to this action. R.P.A.P.L. § 1311(3). Nothing in the complaint's description of John and Jane Doe, "parties intended being possible tenants or occupants of premises" in the caption, or "who may be tenants or in possession of the mortgaged premises" in ¶ 19, however, fairly apprised Superior Maintenance, a lienholder, not a tenant or occupant, that this lienholder was an intended party. Aff. of Joseph C. Savino, Ex. E. Therefore plaintiff has not effectively joined Superior Maintenance either. C.P.L.R. § 1024(a); Goldberg v. Boatmax://, Inc., 41 AD3d at 256; Opiela v. May Indus. Corp., 10 AD3d at 341; ICD Group Int'l Ltd. v. Achidov, 284 AD2d 244, 245 (1st Dep't 2001).

Because the tenants of 2110 Arthur Avenue and Superior Maintenance have not been joined, the court denies plaintiff's motion for summary judgment as premature. C.P.L.R. § 3212(a). Consequently the court does not reach the merits of plaintiff's claim.

III.PLAINTIFF'S MOTION TO DISMISS ARTHUR REALTY'S AFFIRMATIVE DEFENSE

Defendant Arthur Realty interposes the affirmative defense that plaintiff failed to notify defendant of its default. The court may dismiss an affirmative defense if the defense is without merit. C.P.L.R. § 3211(b). Upon plaintiff's motion to dismiss Arthur Realty's affirmative defense, it is not Arthur Realty's burden to establish its defense by admissible evidence, but plaintiff's burden to establish that the defense is legally inapplicable. Bernstein v. Freudman, 180 AD2d 420, 421 (1st Dep't 1992); Greco v. Christoffersen, 70 AD3d 769, 771 (2d Dep't 2010); Vita v. New York Waste Servs., LLC, 34 AD3d 559 (2d Dep't 2006); Santilli v. Allstate Ins. Co., 19 AD3d 1031, 1032 (4th Dep't 2005).

Plaintiff demonstrates the legal inapplicability of Arthur Realty's affirmative defense by producing the mortgage's underlying promissory note in which Arthur Realty expressly waived such notice. U.C.C. § 3-511(2)(a); Red Tulip, LLC v. Neiva, 44 AD3d 204, 209 (1st Dep't 2007); Josephthal Holdings, Inc. v. Weisman, 5 AD3d 221, 222 (1st Dep't 2004); Banco Nacional De Mexico, S.A. v. Ecoban Finance Ltd., 276 AD2d 284 (1st Dep't 2000). Although Arthur Realty in its answer pleads lack of notice, Arthur Realty nowhere alleges that the waiver in the note is invalid or that plaintiff otherwise undertook a notice obligation.

IV.PLAINTIFF'S MOTION TO APPOINT A REFEREE

R.P.A.P.L. § 1321 provides that, if defendants fail to answer or if the answers admit plaintiff's right, the court "shall ascertain and determine the amount due, or direct a referee to [*3]compute the amount due to the plaintiff and to such of the defendants as are prior incumbrancers of the mortgaged premises." R.P.A.P.L. § 1321 (emphases added). Since the tenants and Superior Maintenance have not yet been joined, they have neither defaulted nor admitted plaintiff's right. Because a referee under R.P.A.P.L. § 1321 also must determine these necessary defendants' rights, the court also denies plaintiff's motion to appoint a referee as premature before joinder of all necessary defendants.

V.CONCLUSION

In sum, for the foregoing reasons, the court grants plaintiff's motion to amend the summons and complaint to reflect the intended defendants' true names, grants plaintiff's motion to dismiss defendant Arthur Realty's affirmative defense, but denies plaintiff's motion for summary judgment and appointment of a referee. C.P.L.R. §§ 1024(a), 3211(b), 3212(a) and (b); R.P.A.P.L. § 1321. This denial is without prejudice to a future

motion for similar relief after joinder of necessary parties and joinder of issue.

DATED: June 7, 2010



LUCY BILLINGS, J.S.C.