Mae v Shiraz Assoc. Corp.

Annotate this Case

Download PDF

Mae v Shiraz Assoc. Corp. 2011 NY Slip Op 33519(U) December 13, 2011 Supreme Court, Nassau County Docket Number: 8044/10 Judge: Karen V. Murphy 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. [* 1] Short Form Order SUPREME COURT - STATE OF NEW YORK TRIAL TERM. PART 15 NASSAU COUNTY PRESENT: Murphv Justice of the Supreme Court Honorable Karen J- FANIE MAE, Index No. 8044/10 Plaintiff(s), Motion Submitted: 10/3/11 Motion Sequence: 001 -against- SHIZ ASSOCIATES CORP., PEOPLE OF THE STATE OF NEW YORK, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE and JOHN AND JANE DOES 1 - 100 Defendant(s). The names of the John and Jane Doe Defendants being fictitious and unknown to the plaintiff, the persons and entities being parties having an interest in or lien against the premises sought to be foreclosed herein, as owner, licensee, occupant or otherwise. The following papers read on this motion: Notice of Motion/Order to Show Cause........................ Answering Papers.......................................................... Reply............................................................................. . Briefs: Plaintiff s/Petitioner ' s...................................... .. Defendant' s/Respondent' s.................................. Motion by plaintiff for an order: (a) pursuant to CPLR 9 3212(b) granting it summar judgment against defendant Shiraz Associates Corp. (" Shiraz ), striking the answer ofShiraz 3211 (a )(7); and (b) pursuant 1321 appointing a referee and directing the referee to ascertain and compute and dismissing the counterclaims of Shiraz pursuant to CPLR to RPAPL the amounts due is determined as hereinafter provided. [* 2] Plaintiff commenced this action to foreclose a Multifamily Mortgage , Assignment of Rents and Security Agreement dated September 24 , 2008. The mortgage was given as security for a commercial loan in the principal sum of $880 000. The mortgage encumbers premises knows as 298 Main Street , Hempstead , New York. The premises is improved by an apartment building consisting of 14 units. Fannie Mae is the holder of the mortgage pursuant to an Assignment. Plaintiff moves for summary judgment on the grounds that defendant defaulted under the obligations by failng to make the required payments , by failng to pay all taxes when due and by failng to keep the premises insured. Defendant' s failure to cure these defaults despite demand (see Notices of Default ) prompted Fanie Mae to accelerate the loan and declare the entire balance of principal due and payable. In support of its motion , plaintiff submits various documentation including the mortgage , note and evidence of default; an affidavit of Joey Davenport , an Assistant Manager of Fanie Mae; and a reply affidavit of Thom Ruffin , a Director of Special Servicing of Greystone Servicing Corporation , Inc. (" Greystone showing of entitlement to judgment as a matter oflaw by submitting the relevant mortgage , the underlying note and evidence of default. 2d 540 2011 N. Y. Slip Op. 08345 (2d (Swedbank, AB v. Hale Borrower, LLC 932 N. 82 A. DJd 737, 82 A. DJd 737 918 P. v. Osborne, II, see Rossrock Fund Dept. , 2011); Wells FargoBank, N.A. v. Cohen 80 A. DJd 753 , 755 (2d 2d 514 (2dDept. , 2011); Plaintiffhas made a primafacie Dept., 2011 D. Consequently, the burden shifts to defendant to establish by admissible form the (Quest Commercial see Neuhaus v. 2d 766 (2d Dept. LLC v. Rovner 35 A. 3d 576 , 825 N. 2d 436 (2d Dept. , 2002)), and not one based McGovern 293 A. 2d 727 , 728 , 741 N. existence of a triable issue of fact with respect to a bpna fide defense , 2006); upon conclusory allegations. (Layden v. Boccio 253 A. 2d 540 , 686 N. 2d 763 (2d Dept. , 1998)). In opposition , defendant submits an affidavit of Ali Reza Shaibani , the president of Shiraz; copies of various payments of principal and interest in the amount of $5 628. 14; printouts of insurance payments and real estate payments; and a Conditional Waiver of Tax Imposition Deposits ("Agreement" ) dated December 18 , 2009. [* 3] In sum , defendant claims that it has fully complied with the mortgage , note and agreement and has never been in default thereunder. Furher , defendants believe that the instant motion is " frivolous and for the sole purpose of attempting to obtain additional interest at the default rate and to claim additional legal fees " (Affidavit of Shaibani Twenty- third). In response , plaintiff contends that defendant' s new assertions are meritless. First , it Fifth" of the opposition affidavit of Ali Reza Shaibani argues that although Shiraz , in alleges that " every payment of principal and interest" has been made , the defendant' assertion glosses over the failure of Shiraz to have made payments when the Second Default Notice was sent to it on March 3 , 2010 and its failure to have cured its default within the cure period when the Third Default Notice that accelerated the indebtedness was sent to it on March 16 , 2010. Indeed , the default of Shiraz is set forth in the "printout from the plaintiff' annexed to the Shaiba1li Affidavit at the end of Exhibit C. Furthermore , Shiraz fails to acknowledge (i) the " charge backs " of various principal . and interest payments and payments of sums required by the Agreement , which Shiraz made by checks that did not have sufficient funds to clear and (ii) the lateness of various principal and interest payments that Shiraz tendered, which triggered imposition of late charges that were not paid by Shiraz. Shiraz has offered no documentary evidence indicating that it timely paid the Januar 2010, Februar 2010 and March 2010 monthly payments. While Shiraz conclusively alleges that this commercial mortgage loan was not to 7(a) of the Mortgage provides for the contain escrow provisions mortgagor s obligation to pay sums that wil be held in escrow for the payment of real estate taxes and insurance premiums as same become due and the documentar evidence , plaintiff notes that demonstrates that Shiraz initially complied with this requirement by: (i) funding the Escrow Account with $6 903. 68 at the September 24 2008 Closing and (ii) by then paying required sums into escrow for the first four (4) months that Shiraz made payments on this loan. It has been held that "when a mortgagor defaults on loan payments , even if only for a day, a mortgagee may accelerate the loan , require that the balance be tendered or commence foreclosure proceedings , and equity wil not intervene (First Fed. Sav. Bank v. quoting New York Guardian Midura 264 A. 2d 407 694 N. 2d 107 (3d Dept., 1991)). Once Mortgagee Corp. v. Olexa 176A. 2d399 401 , 574N. a default has been declared and a loan had been accelerated , a mortgagee is not required to 2d 121 (2d Dept., 1999), accept a tender of less than full repayment as demanded (see Albertina Realty Co. v. Rosbro Albany Sav. Bank v. Seventy-Nine 258 N. Y. 472 , 180 N. E. 176 (1932); First Fed. Sav. Bankv. 2d 72 (3d Dept. , 1993); Columbia St. 197 A. 2d 816, 603 N. Realty Corp. Midura, supra). [* 4] (see Home Sav. of Bank of N.Y. v. A valid tender requires an actual proffer of all mortgage arrears Am. v. Isaacson 240 A. MidlandAve. Dev. 193 A. wil cure a 2d419 , 625 N. 2d 633 , 2d 641 659 N. 597 N. default only prior to notice of acceleration 2d 181 (1 517 U. S. 1221 (1996) denied Dept., 1995) 1997); 2d 458 (2d Dept. , 1993D, but such a tender (see Dime Sav. Bank v. Glavey, 214 87 N. st reh denied Moreover " ( a) dispute 2d 94 (2d Dept. , Iv to app denied cert 2d 802 (1995), 518 U. S. 1046 (1995)) as to the exact amount owned by the mortgagor to the mortgagee may be resolved after a reference pursuant to RPAPL ~ 1321 , and the existence of such a dispute does not preclude the issuance of summary judgment directing the sale of (Long Island Savings Bank of Centereach FSB v. Denkensohn the mortgaged quoting Crest/Good Mfg. Co. v. 2d 683 (2d Dept. 222 A. D.2d 659, 635 N. Layden v. Buccio Baumann 160 A. D.2d 831 , 832 554 N. propert" , 1995), 2d 264 (2d Dept., 1990); supra). A referee to compute in a mortgage foreclosure action is authorized to resolve disputes as to the exact amount owned by the mortgagor to the mortgagee , including claimed overpayments or credits; the referee may also exercise discretion in determining that the mortgagee was not entitled to (Central Mortgage collect interest at the default rate. , 2011 WL 5107236 (N. Y. Company v. Acevedo Sup. Furthermore , contrary to defendant's contention , the motion need not be denied as premature on the ground that discovery has not been completed. Defendant has failed to demonstrate that further discovery might lead to relevant evidence (see CPLR 3212(j); Swedbank, AB v. Hale Borrower, LLC, supra; Cortes v. Whelan 83 A. 3d 763 , 764 , 922 S.2d 419 (2d Dept. , 2011D. In view of the foregoing, the motion for summar judgment is granted. The foregoing constitutes the Order of this Court. Dated: December 13 2011 Mineola, N. ENTERED DEC 16 2011 NASSAU COUNTY ceTY CLIWK' OFFlCf.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.