Howard v Citimortgage, Inc.

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Howard v Citimortgage, Inc. 2011 NY Slip Op 33511(U) December 23, 2011 Supreme Court, New York County Docket Number: 105454/11 Judge: Emily Jane Goodman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED Ohl 11b~ZO12 [* 1] -- SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: PART - wJustice / 7 f I , / ! ! R INDEX NO. - MOTION DATE - v MOTION SEO. NO. Ci &/-n o f bg G -4, T Y C . MOTION CAL. NO. - - r The following papers, numbered 1 to were read on this motion to/fo I - Exhibits _ --_.- ... ~ Replying Affidavits _ r _ I I . r Notice of Motion/ Order to Show Cause - Affidavits - Exhibits Answering Affidavits PAPERS NUMBERED /' 1 - ~ ~ ~ L L L w Dated: / 2'., /2& / Check one: 1 - L? FINAL DISPOSITION Check if appropriate: I 1 ~ILY J A M-FI NA L DISPO S IT10M 0 DO NOT POST r-i SUBMIT ORDEW JUDG. AhkBm 1 REFERENCE 3 SETTLE ORDER/ JUDG. ". [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 17 -X - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I I _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ MARTIN HOWARD, Plaintiff, Index No. 105454/11 -againstCITIMORTGAGE, INC.; 138-140 VILLAGE OWNERS C O R P . ; ACQUA CAPITAL LLC; AND ALL UNKNOWN PARTIES CLAIMING BY, THROUGH, UNDER, AND AGAINST THE HEREIN INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST A S PURCHASERS, SUCCESSORS, GRANTEES, OR OTHER CLAIMANTS, I LE JAN 0 6 2012 NEW YOHK COUNTY CLERKS OFFICE Emily Jane Goodman, J.: Motions bearing sequence numbers 002 and 003 are consolidated for disposition. This is a foreclosure action in connection with 270 shares of stock owned by plaintiff Martin Howard (Howard) in defendant 138-140 Village O w n e r s C o r p . , which owns t h e building 138 West Howard lot'' S t r e e t in Ne'w York City. moves, pursuant to CPLR 2221, located at In motion sequence 002, for an o r d e r granting renewal/reargument of this court's order, dated June 1 3 , 2011, which denied Howard's motion for a preliminary injunction to nullify the sale of his shares. In motion sequence 003, defendant Citimortgage, Inc. (Citimortgage) moves, pursuant to CPLR 3211 (a) 1 [* 3] (1) and ( 7 ) , for an o r d e r dismissing the complaint. Howard cross- moves for a default judgment against Citimortgage. Background According to the complaint, i n March of 1 9 9 1 , 138-140 Village Owners Corp. g r a n t e d Howard a proprietary l e a s e for a p a r t m e n t 2 F E . At the same time, he received a loan f r o m defendant Citimortgage, for $63,000, at an interest rate of 11.1255, using the apartment as a security interest.. Howard s monthly payment was $605.92. The complaint states that, at some point, H o w a r d lost his j o b and was not able to make payments in October, November and December of 2010, totaling $1817.76. He states that on January 14, 2011 he submitted a payment for $800, but Citimortgage returned the check on J a n u a r y 25L11 , together with information about h o w to apply for a loan modification. January 2011, 18, H o w a r d alleges that, in t h e meantime, on he received a notice of default from Citimortgage s counsel, overstating the outstanding amount due as $3202.54. The complaint states t h a t Howard eventually found alternative work and would be able to make payments under a loan modification. It further states that he submitted a loan modification p a c k e t to Citimortgage on February 10, 2011. Howard received a notice of However, on March 26th, 2011, sale from Citimortgage s counsel stating that a sale would take place on 2 .. March 3 0 , 2011. The , I [* 4] complaint states that an auction did, in fact, t a k e place on March 30th and defendant Acqua Capital LLC was the successful bidder. T h e amount of the winning bid was $250,000. Howard commenced this a c t i o n in May of 2011, setting forth causes of action f o r , among o t h e r things, fraud, negligence and predatory lending. Howard then moved f o r an order granting a preliminary i n j u n c t i o n and nullifying the sale of his shares. This court denied Che motion in an o r d e r dated J u n e 13, 2001. The court noted, among other things, that Howard s counsel failed to appear for a hearing on the injunction motion and failed to notify the court or opposing counsel. Instead, a per d i e m attorney appeared on plaintiff s behalf, with no knowledge of e i t h e r the case or why plaintiff s regular counsel had failed to appear. Motion Sequence 0 0 2 Plaintiff moves, pursuant to CPLR 2221, f o r an order granting either reargument or renewal of this court s June 13, 2011 order denying the motion for a preliminary injunction. CPLR 2221 ( d ) ( 2 ) provides that a motion for leave to reargue must be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining t h e prior motion, but shall not include any matters of fact not offered on the p r i o r A c q u a Capital asserts that the actual buyer was its principal, Louis Zazzarino. 3 [* 5] motion. CPLR 2221 (e) (2) provides that a motion f o r leave to renew must be b a s e d upon new facts not offered on t h e prior motion t h a t w o u l d change t h e p r i o r determination or shall demonstrate that t h e r e has been a change in the law that would change the p r i o r determination. Moreover, the movant must set forth a reasonable justification for failing to present such facts on the prior motion. CPLR 2221 (e) ( 3 ) . Here, as set forth below, p l a i n t i f f Citimortgage f a i l e d h a s demonstrated that to conform with UCC (f)( l ) , which 9-611 requires that notice of disposition of t h e collateral be s e n t to the d e b t o r at least ninety days before such disposition. Moreover, it is undisputed that the purchaser of the shares has not yet been approved by the co-op board, and as such, may not yet qualify as a purchaser under the provisions of UCC Article 9 . This is an issue which requires additional briefing by the parties. motion for reargument iis As such, the held in abeyance pending t h e submission of additional p a p e r s , pursuant to the schedule set forth below. Motion Sequence 003 Citimortgage moves, pursuant to CPLR 3211 (a) (1) and an order d i s m i s s i n g the complaint. default judgment against (71, for Plaintiff cross-moves f o r a Citimortgage on Citimortgage failed t o either serve an answer the grounds 01 make that a pre-answer motion to dismiss in a t i m e l y fashion. Citirnortgage cross-moves, 4 [* 6] pursuant to CPLR 2004, f o r an order accepting i t s motion to dismiss as timely served, in the e v e n t that the c o u r t determines that the motion was in fact u n t i m e l y . Default A. Howard argues that Citimortgage was served with a summons and complaint on May 24, 2011, at t h e i r offices at 3 9 9 Park Avenue in Manhattan, and then again on May 26t"at their l e g a l offices in Long Island C i t y . Citimortgage appeared by serving a pre-answer motion to dismiss on June 22nd, which is more than t w e n t y days from both dates on which t h e summons and complaint were served. 3 2 0 , 3012 See CPLR (a). As such, Howard argues that Citimortgage defaulted in appearing. However, it is undisputed t h a t Howard originally served Citimortgage via service on the Secretary of State, 01 1 May 2 3 , 2011. As such, Citimortgage was r e q u i r e d to appear within thirty days. See CPLR 320, 3012 (c). Therefore, Citimortgage's service of its motion to dismiss on June 22"' was t i m e l y a n d Howard's motion for a default judgment is denied. Citimortgage's CEOSS CEOSS motion for an o r d e r accepting its motion to dismiss as timely served is d e n i e d as moot. B. Dismissal "On a motion to dismiss pursuant to CPLR 3211, the pleading is 5 [* 7] to be afforded a liberal construction.N Amaro v Gani R e a l t y Cor-p. , 6 0 AD3d 491, 492 (1st 83, 87-88 Dept 2 0 0 9 ) , citing Leon v M a r t i n e z , 84 NY2d (1994). The court must accept the facts alleged in the complaint as true and accord the plaintiffs t h e benefit of every possible favorable inference. I d . , citing Leon v Martinez, 8 4 NY2d at 8 7 . 1. Ninety-Day Notice Plaintiff s first cause of action alleges that the notice of default s e n t by Citimortgage did not conform to the n i n e t y - d a y advance notice requirement set f o r t h in UCC 9-611 (f)(l), which 1 provides that In addition to such other notification as may be r e q u i r e d p u r s u a n t to subsection ( b ) of this section and section 9-613 of this article, a secured p a r t y whose collateral consists of a residential cooperative interest used by the d e b t o r and whose security interest in such collateral secures an obligation i n c u r r e d in connection with financing or refinancing o ¬ t h e acquisition of such cooperative interest and who proposes t o d i s p o s e of such collateral after a default with respect to such obligation, shall send t o t h e debtor, n o t l e s s t h a n n i n e t y days p r i o r t o t h e d a t e of the disposition of the cooperative interest, an additional pre-disposition notice as provided herein. The complaint alleges that the notice sent by Citimortgage on January 18, 2011 is deficient because it was sent less than ninety days prior to the March 30, 2011 s a l e . Citimortgage states that; [* 8] this cause of action should be dismissed because it provided an earlier n o t i c e on July 7, 2010, which w a s more than ninety days before the sale. Plaintiff argues that the July 7L1' notice is insufficient because it was s e n t in response to his default in making a payment in June of 2020, which he remedied by making the missed payment the following month. such, he contends t h a t As Citimortgage was r e q u i r e d to send a new notice a f t e r he defaulted again - The purpose o t h e ninety-day notice is to afford owners of f cooperative shares protections similar to those provided to the owners of real p r o p e r t y under RPAPL 1 3 0 3 . Am., 30 Misc 3d 901, 305 S t e m - O b s t f e l d v Bank of (Sup Ct NY County 2011). T h e notice' is designed to warn owners that they could be in danger of losing their homes and it must contain very specific information about counseling services and resources other available cooperative apartment homeowners in obtaining help. 905-906. to assist See Id. at Here, Citimortgage has not demonstrated that this cause of action should be dismissed. It is undisputed that, after Howard defaulted in making payments f o r October, November and December of 2010, Citimortgage sent a pre-disposition notice d a t e d January 18, 2011. However, that notice was sent less than the ninety days before the date of the sale, and, t h e r e f o r e , plaintiff has adequately alleged that such notice does not: comply with the requirements of the statute. 7 [* 9] Citimortgage has also not demonstrated that the July 7, 2010 notice satisfied its requirements under the statute. That notice was sent in response to Howard's default in June of 2010, which, it is undisputed, he cured a month l a t e r . Citimortgage argues that t h e r e is nothing in t h e statute that requires t h a t a new notice be sent every t i m e t h e r e is a default. Moreover, it argues t h a t once a notice has been sent, it should be presumed t h a t the borrower is aware that he or she has alternatives to foreclosure. Citimortgage's arguments are unpersuasive. First, the statute specifically and clearly states that when a default occurs which leads to a potential disposition of t h e borrower's shares, the secured p a r t y must send notice of such disposition to the borrower no l e s s t h a n ninety days p r i o r to the disposition. Here, the defaults which led t o the proposed s a l e were t h e defaults in October, November and December of 2010. Thus, after such defaults, Citimortgage was required to send Howard adequate notice before disposing of the p r o p e r t y . The July 7th n o t i c e was sent in response t o the June 2010 default, which was not the default t h a t led to the proposed sale. T h u s , the J u l y 7t-h notice cannot be used to satisfy Citimortgage's obligations under the statute. Moreover, there is no support in the statute for Citimortgage's argument that once a notice is sent, the borrower should be presumed to have been given adequate notice on an ongoing basis in connection with l a t e r defaults. 8 In fact, such an [* 10] interpretation would be contrary to the purpose of the statute, which is specifically to provide borrowers with protections from foreclosure. Moreover, it would raise questions as to how long such a presumption should last. Therefore, the motion to dismiss t h e f i r s t cause of action is denied. 2. Format The second cause of action alleges that the notice of default did not conform to UCC 9-611 (f) in terms of the format and style requirements set forth in the statute. The statute provides, among other t h i n g s , that t h e notice of default: shall he in bold, fourteen-point t y p e and shall be printed on colored paper that is o t h e r than t h e c o l o r of the notice required by subsection (b) of this section, and t h e t i t l e of the notice shall be in bold, twenty-point t y p e . The notice shall be on its o w n page: T h e notice must also contain specific information about counseling services and other matters t h a t obtaining help when could assist co-op faced with the loss of owners in a home. See Stern-Obstfeld v Bank of A m . , 30 Misc 3d at 9 0 5 - 9 0 6 . Here, the complaint does not specify any w a y s in which t h e format of the n o t i c e of default did not comply w i t h t h e statute. Similarly, plaintiff s opposition to this motion also fails to specify anything about the format of the notice which w a s inadequate. Therefore, this cause of action is dismissed. 9 [* 11] Inadequate Time 3. s a l e w a s insufficient under UCC 9-612 (b) because it did not allow him enough time to take n e c e s s a r y action t o avoid the s a l e . UCC 9 - (b) provides that: 612 In a transaction other than a consumer transaction, a notification of disposition s e n t after default and 10 days or m o r e before t h e earliest time of disposition set forth in t h e notification is sent within a reasonable time before the disposition. Based on this s e c t i o n , plaintiff argues t h a t he was entitled to at leaat ten days notice of the sale, which took place on March 30, 2011. Plaintiff states that he received the notice of s a l e on March 2 6 , 2011. d i s m i s s e d because they gave h i m fourteen days notice of the sale, which they contend was a reasonable amount of notice. Defendants state t h a t t h e y sent t h e notice of s a l e by certified mail on March 16, 2011. Defendants do not submit proof of such mailing. In general, whether a notification is sent w i t h i n a reasonable amount of time is a question of fact. UCC 9 - 6 1 2 (a);see Coxa11 v Clover Commercial L'orp., 4 Misc 3d 654, 659 ( C i v Ct, Kings County 2004). Here, questions of fact exist as t o when t h e n o t i c e of sale was sent and w h e n it was r e c e i v e d by plaintiff. As such, a question of fact remains as t o whether the notice w a s sent within 10 [* 12] a reasonable amount of t i m e f o r plaintiff to take any necessary a c t i o n s to attempt t o prevent t h e s a l e . Therefore, t h e motion to dismiss this cause of action is denied. 4. Lack of N o t i c e Howard s fourth cause of action alleges that the s a l e should be set aside because the notice of sale w a s invalid because 1 3 8 - 1 4 0 Village Owners Corp. was not given notice of the sale. However, even assuming t h e truth of this assertion, it does not support a cause of action on plaintiff s behalf. would Any such cause of action exist on behalf of the corporation. Despite being a shareholder in the corporation, H o w a r d has not demonstrated t h a t he has standing to assert a claim on its behalf to set aside the sale. Therefore, this cause of action is dismissed. 5. Commercially Reaaonable The fifth cause of action alleges that the sale was not commercially reasonable under UCC 9 - 6 1 0 . H o w a r d a l l e g e s that t h e value of the cooperative apartment is currently around $300,000 based on comparative s a l e s and, at the time of the notice of default, he was in a r r e a r s a total of $1817.76. He also alleges that the outstanding loan balance was $47,508, In light of these numbers, he a l l e g e s that t h e sale w a s not a commercially reasonable disposition o the property. f 11 [* 13] UCC 9-627 (b) provides t h a t a disposition of collateral is commercially reasonable i f i t is made: (1) in t h e usual manner on any recognized market; (2) at the price current in any recognized market at the time of t h e disposition; or (3) otherwise in conformity w i t h reasonable commercial practices among dealers in the type of property 'that was the subject of the disposition. "The fact that a better p r i c e could have been obtained by a sale at a different time or in a different method from that s e l e c t e d by the secured party is n o t of itself sufficient t o establish that the sale was not made in a commercially reasonable manner." DeRosa v Chase Manhattan Mtge. C o r p . , 10 AD3d 3 1 7 , (1st Dept 2004) (internal quotations omitted) - 322 UCC 9-627 ( a ) . "Courts have consistently declined to disturb a ¬oreclosure sale upon a challenge to amount recovered f o r the collateral, except in the n a r r o w circumstance where the p r i c e a l o n e is s o inadequate as to s h o c k the court's conscience.N DeRosa v Chase Manhattan Mtge. C o r p . , 10 AD3d at 3 2 2 . Here, Howard has not demonstrated that the sale p r i c e of the shares was so i n a d e q u a t e as t o shock the court's conscience. The shares w e r e s o l d for $250,000. Howard speculatea, without proof, that the value of the shares was at least $300,000. However, even assuming the truth of his assertion, the disparity in price is insufficient to render the sale price commercially unreasonable. Further, Howard has not set f o r t h any law to demonstrate that 12 [* 14] - .. . ._ . the sale was commercially unreasonable under UCC 9-627 (b) based on the disparity between the alleged v a l u e of the apartment and either the loan balance or the amount of the a r r e a r s . Therefore, this cause of action is dismissed. 6. Accelerated Payment Howard s sixth cause of action alleges that Citimortgage violated UCC 1-208, which p r o v i d e s that: A term providing that one party . . . may accelerate payment or performance or require collateral or additional collateral at will or when he deems himself insecure or in words of similar import shall be construed to mean that he ;;hall have power to do so only if he in good faith believes that the prospect of payment or performance is impaired. The burden of establishing l a c k of good faith is on the p a r t y against whom the power has been exercised. P l a i n t i f f alleges t h a t defendant could not have deemed itself insecure because had been making payments on the l o a n for twenty years and had missed only a few payments. Moreover, he asserts that t h e amount of the outstanding balance was small compared to the value on the p r o p e r t y and defendant failed to make a good faith effort to work out the arrears though l e s s harsh means. As such, he alleges that the s a l e violates the good f a i t h requirements of ucc 1-208. This cause of action is dismissed. F i r s t , as defendants p o i n t 13 . [* 15] out, UCC 1 - 2 0 8 applies to situations in which the contract allows a p a r t y to accelerate performance either "at will" or when it deems itself insecure. Neither of those terms applies here. The contract at issue here required Howard's default as a precondition to acceleration of the loan. Citimortgage did not have t h e ability to accelerate the loan either "at will" or when it deemed itself insecure. In any e v e n t , H o w a r d fails to adequately allege bad faith on Citimortgage's part in accelerating the loan. It is undisputed that Howard was in default of several payments, giving Citimortgage a good faith basis to believe t h a t the prospect of his performance had been impaired. 7. Negligence Plaintiff's seventh cause of action is for negligence. He alleges that the January 2 5 t h letter from Citimortgage, which contained information on applying for a loan modification, was misleading because it led him to believe that Citimortgage was "sincere in its offer t o consider him f o r a loan modification." Complaint, 7 36. He Further a l l e g e s that the January 18th notice of default overstated the outstanding amount owed as $3202.54. Plaintiff alleges that these two letters prevented him from taking remedial action and caused him to go deeper instead of resolving the matter. 14 into debt [* 16] It is a well-established principle that a simple breach of contract is n o t a tort unless a l e g a l d u t y considered t o be independent of the contract itself has been violated. LHR, I n c . v T-Mobile USA, I n c . , 88 AD3d 1 3 0 1 , 1 3 0 3 ( 4 t h D e p t 2011) Clark-Fitzpatrick, m c . v Long Is. R.R. Co. 7 0 N Y 2 d (1987) - such Moreover, extraneous t o contract. the duty contract must arise rather t h a n I quoting 389 382, circumstances from the from elements of Id. H e r e , plaintiff has not a l l e g e d a breach of a duty independent I t i s undisputed that of the parties contractual o b l i g a t i o n s . Citirnortgage s e n t t h e letter a t i s s u e pursuant t o t h e terms of the Therefore, at most, this cause of a c t i o n parties contract. alleges that defendant breached that contract by sending an incorrect notice in terms of t h e amount of t h e arrears. Furthermore, t h e r e i s nothing i n the complaint to s u p p o r t the allegation t h a t the sending of the letter prevented plaintiff from resolving the matter. Therefore, this cause of action is dismissed. 8. Predatory Lending Plaintiff s eighth cause of action alleges that Citirnortgage misled him about its intention to consider h i m for a loan modification, overstated t h e amount of h i s a r r e a r s , charged l a t e fees based on t h a t o v e r s t a t e d amount and conducted a non-judicial 15 [* 17] sale which failed to comply with the relevant provisions of the Howard a s s e r t s UCC. that these actions constituted predatory lending on defendant s p a r t because they made it difficult for him to maintain his rights. This cause of action is dismissed. A l t h o u g h plaintiff r e f e r s , generally, to the existence of several f e d e r a l statutes, including the Truth-In-LendingAct, as well as NY Banking Law 6-1, plaintiff makes no attempt to demonstrate how his loan, which w a s issued in 2991, is covered by any of those statues. Such assertions are insufficient to state a claim f o r predatory lending. See T r i b e c a Lending Coup. v Bartlett, 8 4 AD3d 4 9 6 , 4 9 7 (1st Dept 2011); W e l l s i Fargo B a n k , N . A . v Rolon, 24 Misc 3d 1216(A), 2009 NY S l i p Op 51477(U) (Sup C t , Queens County 2009). 9. Good F a i t h and F a i r Dealing Howard alleges that Citirnortgage breached the implied covenant of good faith and fair dealing by misleading him a b o u t its intention to consider him for a loan modification, by overstating the amount of his arrears and by charging late fees based on that overstated amount. He alleges that these actions illustrate an intent to frustrate his ability t o protect his rights and reach an equitable resolution. The implied covenant of good f a i t h and fair dealing between parties to a contract embraces a pledge that neither party shall do 16 [* 18] a n y t h i n g which w i l l have the effect of destroying or i n j u r i n g the xight of the o t h e r p a r t y .to receive the fruits of the contract." Moran v Erk, 11 N Y 3 d 452, 456 (2008) internal quotations and citations omitted. " 'This implied obligation encompasses any promise which a reasonable person in t h e position of the promisee would be justified in understanding was included' in a contract and 'is breached when a party to [ t h e ] contract acts in a manner that, although not expressly forbidden by any contractual provision, would deprive the other party of t h e right to receive t h e benefits under their agreement. AD3d _ I I NYS2d - I " Kosowsky v Willard Mountain, Inc., , 2011 WL 5 9 8 4 2 7 7 , *3 (3d Dept 2011), quoting Just-Irv. Sales v Air-Tite Bus. C t r . , 2 3 7 AD2d 793, 794 [3d D e p t 1997). Here, plaintiff has n o t demonstrated that defendant deprived it of any rights. Howard's loan. demonstrate that Citimortgage was not obligated to modify N o r does the complaint set forth any f a c t s to Citimortgage prevented him from curing the default. Therefore, this cause of action is dismissed. 10. Fraud Plaintiff's tenth cause of action is f o r f r a u d . He alleges t h a t Citimortgage overstated his a r r e a r s and assessed l a t e fees based on the i n f l a t e d assessment of arrears. He a l l e g e s that the a c t u a l a r r e a r s amounted to $1817.76, while Citimortgage computed it [* 19] as $3202.54. Plaintiff alleges that Citimortgage h e l d him in default and refused f u r t h e r payments based on this inflated amount. "In o r d e r to establish f r a u d , a plaintiff must s h o w a material m i s r e p r e s e n t a t i o n of an existing fact, made with knowledge of its falsity, an intent to induce reliance t h e r e o n , justifiable r e l i a n c e upon the misrepresentation, and damages." M B I A Countrywide Home Loans, Inc., 8 7 AD3d 2 8 7 , 293 This cause of action is dismissed. Ins. Corp. v (1st Dept 2011). Even assuming that Citimortgage incorrectly calculated the amount owed, the complaint fails to a l l e g e any facts to demonstrate either knowledge of that falsity by Citimortgage or justifiable reliance by plaintiff. Plaintiff had the ability to make his o w n determination as to the amount he believed to be correct and has not demonstrated that he justifiably relied on the amount set forth by Citimortgage to his detriment. 11. Unjust Enrichment Plaintiff s eleventh cause of action is f o r unjust enrichment. I He alleges that Citimortgage overstated the amount of t h e a r r e a r s and assessed late fees based on the inflated assessment of arrears. He f u r t h e r asserts that Citimortgage unlawfully proceeded with non-judicial foreclosure sale of the cooperative apartment allegedly valued i n excess of $300,000, in o r d e r to recover an outstanding balance of $ 4 7 , 5 0 8 . 18 [* 20] "Unjust enrichment is a quasi-contract theory of recovery, and 'is an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned. 'I' Georgia Malone & Co., I n c . v R i e d e r , 8 6 AD3d 4 0 6 , 408 2011), quoting IDT C o x p . v Morgan Stanley Dean Witter NY3d 132, 142 (2009). (1st Dept & Co., 12 " T h e plaintiff must show t h a t the other p a r t y w a s enriched, at plaintiff's expense, and that 'it is a g a i n s t equity and good conscience to permit [the other party] to r e t a i n what is sought to be recovered. I" Id., q u o t i n g Mandarin T r a d i n g L t d . v Wildenstein, 16 N Y 3 d 173, 182, [2011]. Here, there is an actual agreement between the parties, in t h e form of the loan agreement, which governs the parties' obligations. Moreover, Citimortgage would not receive the apartment after the sale of t h e shares, or any money in excess of the amount owed to it. Therefore, plaintiff has not stated a claim for unjust enrichment. Accordingly, it is ORDERED that plaintiff's motion for renewal/reargument (sequence 002) is held in abeyance, and the parties a r e instructed to c o n t a c t Part 17 to a r r a n g e a briefing schedule; and it is further ORDERED that defendant's motion to dismiss t h e complaint is granted to the extent that t h e second, fourth, f i f t h , seventh, sixth, eighth, ninth, t e n t h and eleventh causes of action are 19 [* 21] dismissed and the motion is otherwise denied; and it is f u r t h e r ORDERED that plaintiff's cross motion for a default judgment is denied. DATED: December 23, 2011 ENTER : JAN 06 2012 NEW YOHK TY CLERK'S OFFICE EMILY JANE GOODMAN \ 20

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