Zarnighian v Mason

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Zarnighian v Mason 2012 NY Slip Op 30766(U) March 14, 2012 Sup Ct, Nassau County Docket Number: 11474/09 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 11 NASSAU COUNTY PRESENT: Honorable Karen V. Murphv Justice of the Supreme Court SHAHRM ZARNIGHIAN a/k/a SAM ZARNIGHIAN, Plaintiff( s), Action No. Index No. 11474/09 Motion Submitted: 1/17/12 -against- Motion Sequence: 003 MADELYNN R. MASON, Defendant(s). MADEL YNN R. MASON, Action No. Plaintiff(s), Index No. 17044/09 -against- Motion Submitted: 1/17/12 SHAHRM ZARNIGHIAN a/k/a SAM Motion Sequence: 002 ZARNIGHIAN, Defendant(s). The following papers read on this motion: Notice of Motion/Order to Show Cause........................ Answering Papers......................................................... . Reply............................................................................. . Briefs: Plaintiff' s/Petitioner ' s........................................ Defendant' slRespondent' s.................................. [* 2] Plaintiff in Action 2 , Madelynn R. Mason (hereinafter " Mason for an Order granting summary judgment sounding l moves this Court in foreclosure against defendant Zamighian , appointing a referee to compute the amount due , and dismissing Action I. Defendant opposes the requested relief, and cross-moves for summar judgment dismissing both actions as time- barred , discharging the mortgage , and cancellng the notice of pendency fied by Mason against the subject property. Mason opposes the relief requested by Zamighian. These actions arise as the result of Mason s taking of a Note and Mortgage on the subject propert located in Kings Point , New York to secure a $200 000 loan made to Zamighian in April 2002. The Note and Mortgage were executed on April 2 , 2002. It is undisputed that Zamighian made some interest payments from the period on or about and between April 2 , 2002 and August 16 2002 , and that Zamighian made a lump sum payment of$lOO OOO in principal on or about August 16 2002. Zamighian apparently did not make any further payments after the August lump sum payment. It is further undisputed that Zamighian made the lump sum payment with a third part check. The mortgage was not recorded until November I , 2002 , following Zamighian ' s arrest on federal money laundering charges. By Zamighian s own admission made at deposition . he was ultimately convicted of a federal charge related to failure to fie a Cash Transaction Report , which is required to be fied by trades or businesses receiving cash payments in excess of$IO OOO. Zamighian testified that he received a sentence of five years ' probation in addition to forfeiture of cash and cars. Zamighian was in the business of selling used cars at or about the time of his arrest and prior thereto , including at the time that the aforementioned loan was made. Mason s husband Steven Baronwas in the business of repairing cars at that time , and he and Zamighian were in business in close proximity to each other , apparently in the same building. Zamighian rented his business space from an entity called Split Rock Developers in which Mason had an interest. Zamighian commenced Action I in order to discharge the mortgage and cancel the notice of pendency fied by Mason against the Kings Point propert. Thereafter , Mason fied the foreclosure action against Zamighian. According to Office of Court Administration records , Madelynn Russell Mason is an attorney licensed to practice law in New York , whose business address is listed as Mason & April , LLC , in Garden City, New York. [* 3] The Court will first address that branch of Zamighian s cross-motion moving for summary judgment in his favor with respect to both actions. on It is undisputed that the Note ofIssue in Action 1 (Index No. 11474/2009) was fied May 19 2011. It is further undisputed that the Note of Issue in Action 2 (Index No. 17044/2009) was fied on September 13 2011. Each Note ofIssue contains the language that be filed within 90 days of the filing ( m )otions for summary judgment must of the note of issue. . . . " (emphasis added). Zarnighian s cross-motion for summary judgment was fied in the Nassau County Clerk' s Office on December 30 2011. Mason has raised the issue ofthe untimeliness of defendant's motion in her opposition papers , asserting that Zarnighian s motion must be denied on that ground , because he has failed to demonstrate " good cause " for the late filing. A court may not consider the merits of a summary judgment motion fied after the time prescribed for such motion , unless good cause for the delay is demonstrated. This good cause " requirement is strictly construed , and the movant must demonstrate a (Brill v. City of New York 2 N. Y.3d 648 814 N. E.2d 431 satisfactory reason for the delay 781 N. 2d 261 (2004)). In this case , Zarnighian has not offered any excuse for the delay, and has not replied to Mason s opposition on this ground. Thus , that branch of Zarnighian s cross-motion pertaining to summary judgement is untimely, and is , therefore , denied. The Court now turns to Mason s motion for summary judgment made in Action 2. It is well recognized that summary judgment is a drastic remedy and as such should (Andre 2d 131 (1974)). Summary judgment 35 N. 2d 361 320 N. 2d 853 , 362 N. should only be granted where the court finds as a matter oflaw that there is no genuine issue only be granted in the limited circumstances where there are no triable issues of fact. v. Pomeroy, 41 A. D.3d 755 , 837 N. S.2d 594 (2d Dept. , 2007)). With respect to Mason s motion , the Court' s analysis of the evidence must be viewed in the light most favorable to the non-moving part, herein defendant as to any material fact. Zarnighian. (Cauthers v. Brite Ideas, LLC, (Makaj v. Metropolitan Transportation 2d 621 (2d Dept. , 2005)). Authority, 18 A. D.3d 625 , 796 [* 4] A part moving prima facie for summary judgment must make a showing of entitlement as a matter oflaw , offering sufficient evidenc' e to demonstrate the absence of any 64 N. Y.2d 851 , 476 Zuckerman v. City of New York 49N. 2d 557 , 404 2d642 , 487N. 2d 595 (1980)). 2d 718 , 427 N. material issues of fact. (Winegrad v. New York Univ. Med. Center, 2d 316 (1985); In support of her motion , Mason has submitted inter alia copies of the Note and Mortgage , three letters (dated January 31 , 2005 , March 19 2008 , and March 27 2008), and the deposition testimony of defendant Zamighian and of Steven Baron , Mason s husband. Mason has not submitted her own deposition testimony for consideration upon the instant motion. The Note and Morgtage securing the $200 000 loan from Mason to Zarnighian were executed on April 2 , 2002. The maturity date of the Mortgage was April 1 , 2003. On or about August 16 2002 , Zarnighian made a lump sum payment of $100 000 , and made no further payments. Zarnighian was arrested by federal law enforcement authorities in September 2002. The Mortgage was recorded on November 1 2002. Apparently, Mason engaged in discussions with Zamighian s previous attorney, Murray Honig, Esq. , which resulted in a letter dated January 31 , 2005 , sent by Mr. Honig to Mason. In that letter , Mr. Honig acknowledged that Mason is holding a mortgage on the subject premises , but that (Zarnighian) has advised me that your husband (Steven Baron) is presently holding collateral that covers all of the outstanding balance of same. In conversation with you earlier today, you professed no knowledge of this fact and that accordingly, you are taking the position that the mortgage has not been satisfied. I strongly urge you to speak with your husband and get the story straight." The March 19 , 2008 letter is authored by Mason and sent to Zarnighian at the subject premises. That letter , in sum and substance , sets forth Mason s position with respect to the Mortgage , which is that Zarnighian prepaid $100, 000 , and some monthly interest payments but failed to pay the unpaid principal balance of $1 00 000 , together with interest at the rate of sixteen percent (16%) per annum , for a total outstanding balance of$233 855.30. the March 19 letter. Instead , Zarnighian present counsel , Arnold L. Kert , Esq. responded by letter dated March 27 , 2008, which states Zarnighian did not personally respond (p )lease be advised io that I have been retained by Shahram Zamighian relative to your The Mortgage indicates that it should be returned by mail to Lori S. April , Esq. of Mason & April , LLC , at the same Garden City, New York address currently listed as Mason s business address. [* 5] correspondence to him dated March 19, 2008. I ask that you or your attorney contact me to discuss the issues raised therein. To satisfy her burden , Mason must submit proof of the existence of the Note , the (Gullery Gera v. All-Pro Athletics. 2d 221 (2d Dept. Imburgio 74 A. D.3d 1022 905 N. Famolaro v. Crest Offset, Inc. , 24 2d 87 (2d Dept. Inc. 57 A. D.3d 726, 870 N. unconditional terms of repayment and defendant's failure to make payment. , 2010); , 2008); 3d 604 807 N. 2d 509, 703 N. MDJR Enterprises, Inc. v. LaTorre , 268 2d 387 (2d Dept. , 2005); 2d 54 (2d Dept. , 2000)). While it is undisputed that Zarnighian signed the Note and Mortgage in exchange for the $200, 000 loan from Mason , Mason s own submissions upon the instant motion raise a triable issue of fact with respect to whether or not Zamighian failed to make payment on that debt. Mason s own papers also raise the spectre that her claim is barred by the six- year statute of limitations with respect to the bringing of the foreclosure action (Action 2). Mason asserts that her action is not time- bared because Zarnighian acknowledged the existing debt by the January 31 , 2005 letter , which writing contained nothing inconsistent with an intention on the part of Zarnighian to pay the debt (see General Obligation Law & 17- 101). The parties acknowledge that Zarnighian made " some " interest payments on the loan and that Zarnighian also made a lump sum payment of$1 00 000 in August 2002. Zarnighian testified at his deposition , however , that he does not owe Mason any money because he gave Mason s husband , Steven Baron , $200, 000 in cash , in exchange for a $200 000 check from Mason. Zamighian testified that when he made the lump sum payment in August 2002 Baron gave him back $100 000. Zarnighian further testified that he needed the $200, 000 as a downpayment on a house (not the subject propert), but , for unspecified reasons , did not deposit his own cash and write a check for the downpayment based on that money. The Court notes that these activities occurred within the approximately six months prior to Zamighian s arrest , which culminated in his conviction for failng Reports. to fie Cash Transaction Zarnighian also stated that Baron accused Zarnighian of " shorting " him by $25 000 on the cash collateral. Zamighian refused to pay Baron $25 000. Zarnighian also testified that his dealings with respect to this loan were with Baron , not Mason , and that Baron stated that he was not going to record the mortgage , but that Baron wanted it " to have it as aback up, because his wife (Mason) is worried. [* 6] Furthermore , Zarnighian testified that he asked Baron for a " release " with respect to the subject propert in December 2002 , but did not speak with Mason. In addition , a Mercedes Benz automobile was transferred from Zarnighian to Mason in 2002. Zarnighian testified that Baron bought the car for Mason , and that another car , a Bentley, was transferred to Mason that same year. According to Zarnighian , Mason was in the business of motor vehicle financing. Baron s testimony reveals that he and Mason became somewhat estranged at or about the commencement of these actions , and that other family problems also contributed to the estrangement. Baron confirmed that he acted as the go- between for Zamighian and Mason carring the documents giving rise to these actions back and forth. He also confirmed that he carried information between the parties , testifying that when Zarnighian would propose terms regarding the loan , he would always tell Zarnighian that he would have to check with his wife , Mason , because she "wears the pants. Baron denied the existence of any cash collateral for the $200 000 loan , but he admitted that , when the Mortgage was originally given it was "probably not" intended that it be recorded. Baron also admitted that Zarnighian may have given certificates of title to cars along with the Mortgage: " As to whether he gave us titles , I have a recollection that there might have been titles. " Baron also admitted that Zarnighian made the lump sum principal payment of $1 00 000 via a third- part check. Mason s affidavit dated August 17, 2009 , which was submitted on a previous motion and resubmitted on the instant motion , restates the fact that the Note and Mortgage were given , and that defendant owes $233 855. , plus interest. Mason s affidavit does not mention the lump sum payment of $100 000 , or the January 31 , 2005 letter authored by Zarnighian s former counsel. Based on the foregoing, a factual issue has been raised as to whether Zarnighian satisfied the Note and Mortgage with cash or other collateral. Further in view of the foregoing, there is a factual issue raised as to whether the January 31 , 2005 letter contains anything inconsistent with an intention on the part of Zarnighian to pay the debt, thereby affecting the tollng of the statute of limitations for Action 2. It is evident that substantial issues of fact exist in this matter. Accordingly, Mason has failed to establish her entitlement to summary judgment as Certainly, the March 27 2009 letter is neither an acknowledgment ofthe debt , nor does it evidence any intent by Zarnighian to pay it. [* 7] a matter of law. Also , it is evident to the Court that issues of credibilty abound in these two actions. Such issues of credibility generally require the denial of summary judgment and are to be Siegel, Practice Commentaries, McKinney s Cons Laws of NY, resolved by the trier of fact. 18 A. D.3d 696 , 794 N. S.2d 348 &3212:6, at 14; Donato v. ELRAC, :Inc., Book 7B, CPLR 125 A. 2d442 , 509N. S.2d 372 (2dDept. , 1986). (2dDept. , 2005); Framev. Markowitz, burden , it is unnecessary to the defendant' s papers submitted in opposition are sufficient to raise a 2d 73 (2d Dept. , 2010); (See Levin v. Khan 73 A. D.3d 991 904 N. 2d 157 (2d Dept. , 2010)). 69 A. 3d 581 , 893 N. Since the defendant has failed to meet her determine whether triable issue of fact Kjono v. Fenning, prima facie The foregoing constitutes the Order of this Court. 2012 Mineola , N. Dated: March 14 ENTERED MAR 2 1 2012 NASSAU COUNTY COUNTY CLERK' S OFFtCE

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