Mayer v Abri Props., LLC

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Mayer v Abri Props., LLC 2012 NY Slip Op 33119(U) December 20, 2012 Supreme Court, Suffolk County Docket Number: 15914/2012 Judge: Thomas F. Whelan 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] MEMO DECISION & ORDH{ INDEX No. 15914112 CO"' SUPREME COURT - STATE OF NEW YORK COMMERCIAL PART 45 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE ~~~~--10/19/12 ADJ. DATES _1_2/_7/_12 _ Mot. Seq. # 001- MG; Submit Order ---------------------------------------------------------------X MICHELE M. MAYER as Trustee of the RONALDJ MAYER AND PATRJCIA M. MAYER FAMILY TRUST, Plaintiff, -againstABRJ PROPERTIES, LLC, STANLEY DALENE, JOANNE DALENE, CLIFF WOOLLEY a/kJa CLIFFORD WOOLEY, SANDRA WOOLLEY, SDC CONSTRUCTION, INC., a/kJa SDC CONSTRUCTION CORP., ET ALS, Defendants. PINKS, ARBEIT & NEMETH, ESQS. Attys. For Plaintiff 140 Fell Ct. Hauppauge, NY 11788 ELLIOT F. BLOOM, PC Attys. For Defendant J. Dalene 2 Hillside Ave. Williston Park, NY 11596 BEN CARTER, ESQ. Atty. For Defs. Woolley 220 Roanoke Ave. Riverhead, NY 11901 LAZEI', APT HEKEl', ROSELLA Attys. For Def. Capitol One 225 Old Country Rd. Melville, NY 11747 ---------------------------------------------------------------X Upon the following papers numbered 1 to _8_ read on this motion for accelerated judgments and appointment ofa referee to compute; Notice of Motion/Order to Show Cause and supporting papers~; Notice of Cross Motion and supporting papers ; AnsweringAffidavits and supporting papers 5-6 ; Replying Affidavits and supporting papers 7-8 ; Other ; (dlid nfw Ileal in~ etltlll~e1 ill 3tll'I'0I"l: ond 0l'I'03,.,d to th~ lllOliolt, it is ORDERED that this motion (#001) by the plaintiff for accelerated judgments against the defendants, the appointment of a referee to compute and other incidental relief is considered under CPLR 3212,3215 and RPAPL 1321 and is granted. [* 2] May<.:rv J\BRI Properties. LLe Index No. 15914/2012 P:lgl,.' 2 The plainti Jlcoll1menced this action to foreclose a 1.000.000.00 mortgage luan given to Ronald J. Mayer. now deceased by the corporate delcndant. Ahri Properties, LLC on July 5, 2007, which was evidenced by a promissory note executed on that date by such ddcndant. As security lor the loan, the Dalenc defendants mortgaged their residential real property located at 180 Water Hole Road. East Ilampton and the Woolley defendants mortgaged their residential real property known as 70 Bridies Path. Southampton. New York. The mortgage indenture executed by the Dalene and Woolley defendants Oll July S. 2()07. in favor of the now deceased mortgagee. recites that each or the two mortgages giv\..'1lhen:lll arc second to and subordinate to Jirst mortgages then existing on each orthe t mortgaged parcels. The July 5. 2007 mortgage loan to the corporate detendant was further secured by a July 5. 2007 Unconditional Guaranty of Payment executed by defendants, Stanley Dalene, CIiJTord Woolley and SOC Construction. by its president, Stanely Dalene. A second. separate Unconditional Guaranly of Payment dated July S. 2007. was executed by defendants. Joanne Dalcne and Sandra Woolley. Each of these written gunrantl'l's authorized the lender to renew. compromise. extend, accelerate or otherwise change Lhclil11C payment or the terms orthe indebtedness without notice to ih guarantors and without or affecting the guaranty obligations set forth therein. Each \vritten guaranty also included full and broud waivers or all defcnses the guarantors or the borrower might possess. By an undated writing effective July 5, 2009. as amended by writing dated September 17. 2009, the mortgagee and the corporate defendant. together with two or its five guarantors, namely. Stanley Dalene and Clifford Woolley, modi lied and extended until July 5, 2010. the maturity date of the loan that was originally Iixed as July 4.2008. which had been previously extended in writing to July 5. 2009. Modification ofinteresl due and thc payment 01" ccrtain lees were also included. Copies of all of the foregoing loan documents arc utluched to the plaintiffs moving papers with the exception oflhe 2009 modification agreement that is referenced in the Note I-::-;tensionand Moditlcation Agreement of July 5. 2009, as amended Sept em her 17. lOOt). The mortgagee died in October 01'2010. a domiciliary or Florida. Ill' allegedly left a will by which he named his wi Ie. Patricia M. Mayer. as pl:rsonal representative of his estate. In such capacity. Patricia M. Mayer e.'\CclItcd,on February 15. 2012. an assignment of the subject note and mortgage to the plaintifr. Michelle M. Mayer. in her capacity as trustee of the Ronald J. Mayer and Patricia M. Mayer Family -l'rll,:,tI hcn.::inaftcr"Mayer Family Truse). [n such capacity. the plaintiff commenced this action to roreclosl,.;the subject morlgagc alld j~)rother relieras the corporate dekndant all~gcdly failed to 1l1,1kcpayment in accordance with the terms of the lml11 documents. The February 15.2012 assignment oflhe subject note unci mortgage in favor ofl11c plaintiff was recorded in the oClicc orthe County Ckrk on May l). l012. The instant action was commenced by liling on May 23, 2012. Issue was joined by service ol"ajoint answer by ll1ortgagorlguarantordelcndants. Woolley dated JUlle 10. 2012. It eOlllains three affirmative defenses lllc!uding. fraud in the inducement; usury and the purported discharge or the Woolleys' guaranty obligations hy reason of the modi/icatian or the [* 3] Mayer v ABRI Properties. I.LC Jndex No. 1591411012 Pagr.: 3 corpOt"atr.: bornl\vcrs":) note p:lymr.:ntobligation without the consent of guarantor. Sandra Woolley. /\ joint <lnsw!.:I" d~llcd July 15,2012 \Vas separately served on behalf of the corporate borrow!.:r, Ahri Properties, I,I,C the mortgagor/guarantor defendants. Stanley and Joanne Dalene, and the corporate guarunLor dell.:nda11l.SDS Construction. Inc. Ilowever. the plaintiff rejected this answer as untimely e\:cepi as to defcndant. Joanne.' Dalenc. By the instant motion. thc plallltiff seeks summary judgement against ans\\'ering defendants, Woolley and dr.:rcndant. Joannc Dalenc. and. in effect. dcfauh judgments against the remaining delcndants with respect (0 the plai11liJT pleaded demands lor a judgment of lon:elosure and sale and s on her claim for a deficiency judgment against the corporate borrowcr and the five guarantor defendants. '1"11<: plainti rf furthel"seeks In order dropping as party defendants. the unknown defendants listed in the caption and the appointment 01':1 referee to compute amounts due under the loan documents. The motion has been opposed only by the Woolley defendants who therein Jsscrt only one of their pleaded affirmative delenscs. namely. Il'uud in the inducement. For the n.:asons stated the below, the plaintiffs motion is gnmted. The moving papers established the plaintiff's entitlement to summary judgment on itseomplaint to the eXII.:nt t asserts claims againsl the answering defendant as such moving papers included copies i of the mortgagc. the unpaid note. the extension agreement of July of2009 and due evidenc<eof a default under the terms thereof (see CPI.R 3212; RPAPL § 132]: HSBC Bank v Shwartz, 88 AD3d 961,93 I NYS2d 52812d Dcpt 20111: Countrywide Home Loalls v Delphollw. 64 AD3d 624, 883 NYS2d 135 (2e1Dept 20091: J.P. 1110rgllll Chaw Balik vAgllel/o, 62 AD3d 662, 878 NYS2d 397l2d Dept 2009"1: Wells Fargo Balik. Mi/llll!sotli v Perez. 41 AD3d 590. 837 NYS2d 877 [2d Dcpt 20071; HOtt:i/!IWItl Fill. Rea/~IJOn]). of New York v WilllL 19 ADJd 545, 796 NYS2d 533 [2d Dept 2005 J; Ocwell Fed. Balik F,S'B v Miller. I X /\])3d 527. 794 NYS2d 650 r2d Dept 2005]). The moving papers further established thl::plaintilL'i entitlement to summary judgment on her pleaded demands ((,)1" a deficiency judgment against the answering guurantor delendanls by the production orthe wntten guarantees signed by tllr.:answering ~\larantor defendants. the other loan documents listed above and proof ofdcf<lu1ts in payment by the corporate borrower/note obligor and the guarantors (see BlITOn A.\".WJc., LLC v Garcia GroujJ E111er" 9(ll\D.ld 793. 946 YS1d 611 12d Dept 20121; Archer Capitll/ Fund, L.P. v GEL, He. <)5AlJ3d ~UO.<)44NYSld 17<)[ld Depl 2012/). IIwas thus incumbeJH upon the answcrlng delendanl to submit proof sufficient to falSC a genuine question 01"fact ellL'cting a rebuttal 01"the plaintilrs prima facie showing or in SUPP0l1 of the legal del"enseavailable 10them (sue nagstar BlIuk \I Bellltjiore. 94!\D3d 1044,943 NYS2d 551 12d Oert 20121: Grogg Assoc.", I'So1lth Rd. Assoc.,· .. 74 AD3d 1021 907 N YS2d 2212d ])ept 20101: JVashillgtl)ll Mut. /Jaflk II O'Co////or. (13i\D3d 832. 880 NYS2d 696 r2d Dept 2009]: J.P. Morgall Chase /Jaok, N/f l'AglJ/!1I0. 61 A])3d M2. gn NYS2d 3'J712d Dcpt 10091: House/wid Fill. Rell/~)ICorp. ofNelt' )TorR l' Willl1. 19 !\]).1J 545. S/ll}f"(/). Notably. self-serving and concJusory allegations do not raise [* 4] Mayer \' ABRI Properties. LI.C Index No. 1591..j.f~OI~ Pag.e ..j. issues llt" l~lCt nd do not n:qlli 1"1.: a plainti rrto respond Lo alleged cd'lirmativc dclenscs which are based on such alkgatiolls(see Clwrfer Olle Bank, }""'SB),Leone, 45 AD3d 958, 845 NYS2d 513[3d Dept20()7]; Rosell Auto Leasillg, Inc. II Jacoh.\-. 9 AD3d 798. 780 NYS2d 438 [3d Dept 2004 J). Where a delCndant t~lilsto oppose some or all matters advanced on a motion for summary judgment. the hicts. as alleged in the movants' papers. Il1:.lY he deemed admitted by the unresponsive party as there is, in elleet, a concession that n(l question or Jact exists (see Kuehne & Nagel, luc. v Baidell. 36 NY2d 539. 369 NYS2d 667119751: Argef11 Mfge. Co., LLC v Meutesaua, 79 AD3d 1079.915 NYS2d 591 [2d Ocpt 2010]). llere, the COUlt s without receipt of opposing papers from answering defendant Joanne Stanley. i The plainti rr s prima l~lcieshowing of its entitlement to summary judgment on her complaint against this answering dclcndant was thus not controverted (see Flllgstllr Balik v Bellttjiore. 94 AD3d 1044, .l"lIpm) "l"h.:: l~\ilur(:to oppose this motion coup!.::d with the plaintiffs prima facie showing ora lack or mcrit in the al"lirmative defenses set forth in the answer of Joanne Stanley warrants the dismissal ofslIch detCnses pursuant to ('Pl,R 3:!1~ (see CPLR 3~ 12: 3211 [bJ: GOlJzalezv WoodboumeArhoretunJ, Illc., 100 i\J)3d 604. 1(; 12 WI. 5503596 ]2d Dept 20 12l Argellt Mfge. Co., LLC v MelifeSllntt, 79 AD3d 1079. supra). The plainti Irs motion for summary judgment on her claims lor foreclosure and sale and for an award a deficiency judgment is thus granted with respect to defendant. Joanne Dalene. i\ review of the opposing papers submitted by the Woolley defendants reveals that the same were insurtici.::nt to raise any genuine question of ract requiring a trial on the merits of the plaintiffs claims for foredosure due to a t~\ilureof proof on the part of the plaintiff or the existence offacts giving rise to any bona lide dclellscs helonging to the Wolleys (see CPLR 3211[eD. The opposmg papers submitted by the Woolley defendants J:'lilcd to include any allegations or prool" in support of their Second I\llirlllative dclense or discharge of tbeir guaranty obligations due to an unconsentcd to modiJicltion of underlying principal note obligation or in support of their Third and last assel1cd arJinnativc dclCnsc of usury. Instead. the Woolley defendants attempt to rebut the plaintilT's prima hlCie showing of her entitlement to summary judgment by the advancement of allegations that are onered soldy in support or the Wolleys' First aflinnative defense which sounds in fraudulent Inducement. The fraudulent conduct complained of consists of misrepresentations as to limitations on the risk ofloss the Wolleys were allegedly suh.iectto under the terms oftheir written guarantees. Such misrepresentations w..:realleged uttered by Mr. Wolley's co-detCndant and business associate. Stanley Dakne. and/or the attorney who prepared the loan documents and purportedly acted as the TransactiOlUlI attorney 1<11' Cnrp{lrate bonmvcr. Mr Dakne and the deceased mortgagee These claims arc. the llUwc"cr. illslll'iicielll ror the l"CaS{lIlS stated bdow. 1\ is ~1.\i{)ll1atic the ..::kmcllls or an allcg,llion of claims of !j'aud arc <l 11l1srcpl"i~sentati{)11 that lll" material ollll.':isiollor !~lct\.vhich \vas raIse and known to be hdse by an adverse party. made for the purpose of indliclIlg the other party to rely upon it. JustIfiable reliance of the other pm1y on the <l [* 5] Mayer v ABR[ Properties. LLC Index No. 1591.+/2012 Pa!!e 5 misrcpn:sentation or mall:ri,:il omissIOn. and in.iury (see Eurycleia Ptlrtllers, LP v ,f)'ewllrt/ & Kissel, In addition. CPLR 3016(b), requires that the CIITumst:lIlCesunderlying a claim or dc!cnsc based on haud be staled "in detail" (CPLR 30] 6rb); see SteiJlI) Doukas. 9:-\AD31 0:24.951 NYS:2d 17312d Dept 2012!). Where a writing contains terms that cOlltradict or dilTcr III meaningful ways from the representations purportedly relied upon by the allegedly defrauded party. there is no justi fiable reliance (see Perroff; v Becker, GlynJl, Melamed & Mu/fly LLP. Xl Al)3d 495. 918 NYS2d 423 II sl Dcpt 2011 t UT!ittul1 Bit/tl/e Prop., Jnc. v Excel.\·ior. (i5 AD3d 1135.885 NYS2d 51() [2d Dept 20091: McMorrow v Dime SllV. Bank ofWil/;am.<>burglt. 48 AD3d 646. 852 NYS2d 34512d Dept 20081). Allegations that the reliant pa1iy failed to read the subject writing. the tertllS or which negate the purported misrepresentation, arc usually unavailing since such party is presumed to have read the writing and thus, in general, not predicate its fraud claim upon a failure 10 do so (see Pllfferso" v Somersetl"v. Corp .. 96 AD3d 817, 946 l'YS2d 217 12d Dept 2012 J; Sorellson II Bridge Clipital COIl' .. 52 AD3d 265, 861 NYS2d 280 [1st Depl 2008): Lewi" Cltcllrolet-Geo-O/d.mwbile JIIC. II Bent/cr. 225 AD2d 916. 639 NYS2d 180 [3d Dept 19961). LLP. 12 NY3d )5~. 550. S:-D NYS2d 1471200(1). In the mortgage foreclosure arena, it is clear that a mortgagor may be relieved from his default under a mortgage upon a showing. of waiver. estoppel. bad faith. fraud, or oppressive or unconscionable conduct by the mortgagee is clear (see Nassau Trust OJ. v Montrose Concrete Prot/s. Corp, 56 NY2d 175. 451 N YS2d 663 119821). However. fraud even of this type is no defense where it was not committed against the mortgagor or where it concerns a fraud related 10 actions by others not connected with the mortgagee (see Delilsclte Blink Nat. Trust Co. v. Gort/oll. 84 AD3d 443, 922 NYS2d 661.1st Dept 2011!: De/NI runt/i/lg Corp. v Yllede. 268 AD2d 554. 702 NYS2d 854 [2d Ocpt 2000]: Prudential Ius. Co. o/America v Kelly. 174 1\1)2d 717. 571 NYS2d 761 12d Dcpt 19911: Marine Midlmlll Htlll/i II Fillippo. 276 1\])2d 601.7\4 NYS2d 906 [2d Dept 20001). MorevcL a mortgage may 110t e set aside splely because the underlying transaction was tainted by a Jhwdu1cnt representation (see b Joanne l/omes II Dworelz. 25 NY2d 112.302 N YS2d 799 1'1(691). It is thus apparent that something more than a mere tainting of tlw underlying transaction by reason of a misrcprescntmion must be established in ord('l"for the court to deny an cstablished remedy of foreclosure and sale upon equitable grounds, Ilere. the conclusory allegations ofpurported misrepresentations of fact regarding limitations upon the Wolleys' personal exposure to liability under the terms of their wTitten gllarant'::e and/or the m0l1gage executed by them arc devoid of the lype or specific tltctlla! avennents necessary to support a fraud defense that arc imposed by CPLR 3016. including the clemen! or justifiable rcliance. Moreover. then: al'e no allegations or any fraudulent conduct on the part of the mortgagee and nothing In the record olhel"lhan pure llmcy. conjecturc and speculatlOIl. that any ullegcd misrepresentation made by D,lknc and/or his al10rney may be imputcd to the nO\v deceased mortgagce (see Joaf/ne /Jome.\' II Dworetz. 25 N Y:?:d 111 . .I'/ljJm: Deu1.\"{~heBlink Nat. Trust CO. I'. Gordon. 84 AD3d 443. SlIjlm: Deltll Funding Corp. l' YliCt/C. 26k I\D2d 554. SlljJm: Prut/ential Jm·. Co. (?/Americll v KeI~J!. 174 I\D2d [* 6] Mayer v ABRJ Properties. LI.C Index No. 15914n012 Page 6 717, SlIjJ/"({: Marine MirlluJI(IHalik v FillipfJo, 276 AD2d 60 I, supra). Finally, the Woollcy defendants' admIssion that they fuilcu to read the mortgng(,:,guarantees and other loan documents executed on July 5.1007 reveals a lack of merit in their claims oj"ij'<Judulentinducement (see Patterson v Somenet 11m Corp .. 96 i\D3d 8 J 7. supra: Sorenson v Bridge Capital COI])., 52 J\D3d 265, supra). The Woolleys' opposing papers werc thus insufficient to rcbut the plaintiffs prima facie showing of her entitlcmcnt to the summary judgment demanded by her. The eoun thus finds that the plaintilr is cntitled to summary judgment on its complaint against each ol"the answcring dcll:ndanls and a dismissal ol"each al1irmativc dcfense set forth in iheir answers pursuant LoCPLR 3111 (see CPLR 3112: 3211 Lbl; Gouzalez v Woodboume Arboretum, fIlC., 100 ADJd 694.slIj7l"(1; Mazzei v Kyriacou. 98 AD3d 1OS8,95 1 NYS2d557 r2d Dept20 121). The plaintilrs demands for summary .i udglllcnt against such defendants arc thus granted Those portions of the instant motion wherein the plaintiff seeks an order dropping as parly derendants the unknmvn defendants listed in the caption and an amendment of the caption to reJ1cet same are granted. 1\11 future proceedings shall be captioned accordingly. The moving papers further established the dcJaults in answering on the part of defendants. J\bri Properties. I -'.c. Stanley Dalene. SDC Construction . Inc.. and the remaining corporate defmdants listed in the caption. none of whom served answers to the plaintiffs complaint. Accordingly, the defaults in answering of all such defcndants are hereby fixed and determined. Since the plaintiffhas been awarded summary judgment against the answering defendants listed above and has established a default in answering by the remaining detendallts, the plaintiff is entitled to an order appointing a referee to compute alllounts Jue under the subject note and mortgage (see RPAPL ~ 1321; Balik of East Asia, Ltd. I' 8mith. 2()] i\D2d 522. 607 NYS2d 4.11 f2d Dept ] 994];VermoJlt Fed. Bank l' Chase, 226 J\D2d lm4. 641 NYS2d 440 r3d Dept 1996]: Perla \I Real Prop. Holdings, LLe, 23 Misc3d 697, 874 NYS2d H73 I Sup Ct. Kings County 2009.1). The moving: papers further established that no conference of the type mandated by the I,aws of Laws of 200S. (·h . .:I- 2 3-<.1 as amcnded by the I.aws of2009 eh. 507 § 10 or by CPLR 3408 nor T service of any oCthe specialized statutory home loan notices were required in this action sincc the loan at issuc is not <J "honll' loan" as that tcnn is dcJined in § 1304 of the Rcnl Property Actions and Proceedings l.<lw I RP1.1. Under these circumstances. the pluintifl" is now entitled to the i.5suanceof an order or reference due to the accelerated judgments awarded to the plaitllilT against the defendants on * this motion. Since I1U proposed ord!';I'appointing a rdcrcc to compuLe was attached to the moving papers by the plainti If the court grants this lllotion subject to the pbintilr s submission. upon a cupy of this mcmo decision ~llldorder. ora proposed order appointing a referee to compute amounts due under the terms [* 7] .r-.1ayerv I\BRI Proper1il's. LLC Index No. 15914n()l~ Page 7 nfthe subjccIll1ortgagc. Such order shall provide. in blank. for the court"s designation C'fthe referee and shall include all of the usual provisions regarding compliance with the rules imposin~ duties upon appointl:cs who accCrl SlKh appointments under 22 NYCRR Part 36_ The proposed order shall also relCrence the papers submiued on this motion. the granting thereof by the court in this memo decision and order and the malerial terms thereof. Submi l proposed order appointing a reJCreeto compute, upon a copy of this memo decision and orucr.

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