Perkins v Barry

[*1] Perkins v Barry 2013 NY Slip Op 50674(U) Decided on May 1, 2013 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 1, 2013
Supreme Court, Kings County

Thomas Perkins and SALLY PERKINS, Plaintiffs,

against

Philip Barry, AMERICAN EXPRESS CENTURION BANK, JP MORGAN CHASE, N.A., et. al, Defendants.



16411/12



Attorney for Plaintiffs

Wagner Davis, P.C.

99 Madison Avenue

New York, New York 10016

Philip Barry, Pro Se

Francois A. Rivera, J.

By notice of motion filed on February 22, 2013, under motion sequence number one plaintiffs Thomas Perkins and Sally Perkins (hereinafter jointly "Mr. & Mrs. Perkins") have moved for an order: (1) granting summary judgment in their favor pursuant to CPLR 3212 as against defendants Frances Monteleone, Frank J. Monteleone, Wendy Monteleone, Elyse Scileppi, Linda Rodriguez and Philip Barry (hereinafter Mr. Barry);(2) dismissing Mr. Barry's counterclaims and affirmative defenses pursuant to CPLR 3211(a)(7) and (b);(3) granting judgment against defendants United States of America, City of New York and the New York City Bureau of Highway Operations for all relief requested in the complaint pursuant to RPAPL § 1321;(4) appointing a referee to ascertain and compute the amount due pursuant to RPAPL § 1321;[*2](5) substituting "John Doe 1", "John Doe 2", "John Doe 4", "John Doe 5", "John Doe 6","John Doe 7" and "John Doe 8" with Mr. Mike, Adam Perera, Moneer Salem Almantheel, Patricia O'Hanlon, Michael Ryan Condit, Mohammad Munir and Adnan Javed, respectively; and

(6) striking the remaining "John Doe" defendants from the caption.

The motion was returnable on March 4, 2013 and was adjourned to March 15, 2013. On March 15, 2003, the plaintiffs advised the court that defendant Mr. Barry was incarcerated and not expected to appear for oral argument. Also on that date, the court by short form order directed Mr. & Mrs. Perkins to file and serve a supplemental affirmation by March 22, 2013, explaining which defendants were entitled to service of the instant motion in accordance with CPLR 2103(c).

Defendant Mr. Barry has submitted written opposition to the motion.

BACKGROUND

On August 9, 2012 Mr. & Mrs. Perkins commenced this action to foreclose a mortgage encumbering the property Block 5998 and Lot 51 located at 8126 Fifth Avenue, Brooklyn, New York (hereinafter the subject property) by filing a summons and complaint and a notice of pendency with the Kings County Clerk's office. By answer dated October 31, 2012, defendant Mr. Barry joined issue.

The complaint alleges the following salient facts: on May 19, 2006, Mr. Barry executed and delivered a note (hereinafter the subject note) to Mr. & Mrs. Perkins evidencing a debt of $1,500,000.00. Mr. Barry executed a mortgage in favor of Mr. & Mrs. Perkins encumbering the subject property (hereinafter the subject mortgage) for purposes of securing the debt. Mr. Barry defaulted under the terms of the subject mortgage and note by failing to make the payments which became due in October of 2007 or on any month thereafter.

Mr. Barry interposed an answer containing general denials, affirmative defenses and counterclaims. The first affirmative defense found in paragraph 29 asserts that the complaint fails to state a cause of action. Mr. Barry further states therein that Mr. & Mrs. Perkins caused or prevented him from curing his default by engaging in certain acts which he sets forth in paragraphs "A" through and including "K".

Mr. Barry then requests affirmative relief in a set of paragraphs labeled "a" through "d" which follows a "wherefore" clause. In the second set of paragraphs Mr. Barry seeks dismissal of the complaint in paragraph "a", injunctive relief in paragraph "b", a declaratory judgment of Perkins liability in paragraph "c" as well as monetary damages. Paragraph "d" requests any further appropriate relief. Mr. Barry also seeks that his request for affirmative relief be deemed counterclaims.

MOTION PAPERS

Mr. & Mrs. Perkins motion papers consists of a notice of motion with four attached documents and other separately submitted documents. Attached to the notice of [*3]motion is Thomas Perkins' affidavit which refers to four annexed exhibits labeled A through D, among other. Exhibit A is described as an assignment of leases by Mr. Barry to Mr. & Mrs. Perkins. Exhibit B is described as a calculation of the principal balance owed by Mr. Barry to Mr. & Mrs. Perkins on the subject mortgage note. Exhibit C is described as a 90 day pre- foreclosure notice. Exhibit D is a described as a copy of a criminal judgment against Mr. Barry.

The documents submitted separately by Mr. & Mrs. Perkins include a memorandum of law, a proposed order of reference, and an affirmation of their counsel, John Overland. John Overland's affirmation is signed on January 25, 2013 and refers to thirteen annexed exhibits labeled 1 through 13. Exhibit 1 is described as the subject mortgage on the subject property. Exhibit 2 is described as the subject note. Exhibit 3 is a description of the subject property. Exhibit 4 is described as the summons and complaint. Exhibit 5 is described as the notice of pendency. Exhibit 6 is described as affidavits of service of the commencement papers on various parties. Exhibit 7 is described as an abstract of the subject note. Exhibit 8 is Mr. Barry's answer to the complaint. Exhibit 9 is described as motion papers filed by Perkins in a federal bankruptcy proceeding pertaining to Mr. Barry. Exhibit 10 is described as a copy of the Trustee's declaration in the aforementioned Federal Bankruptcy proceeding. Exhibit 11 is an order of a United States Federal Bankruptcy Court. Exhibit 12 is a described as a certificate of service upon Mr. Barry of Mr. & Mrs. Perkins' motion filed in the aforementioned bankruptcy proceeding. Exhibit 13 is an affidavit of service of a notice and the notice issued pursuant to RPAPL 1303 to Michael Ryan Condit, as a tenant of a building in foreclosure. Mr. Barry has opposed plaintiffs' motion with a letter which he signed and served on February 25, 2013. Plaintiffs' counsel had advised the court on the return date, that their reply to Mr. Barry's opposition should be denominated as an Affirmation in Support of Plaintiff's Motion for Summary Judgment and Related Relief. The reply papers contains counsel's affirmation, an affidavit of Thomas Perkins and eleven annexed exhibits labeled A through K. The reply was served on March 14, 2013, the same date Thomas Perkins and plaintiffs' counsel signed their respective sworn statements.

In compliance with the Court's direction, Mr. & Mrs. Perkins also submitted a supplemental affirmation of their counsel which contained three annexed exhibits labeled A through C.

LAW AND APPLICATION

There is no opposition to that part of the Perkins' motion which seeks to amend the caption by substituting certain John Doe defendants and striking others and the court sees no prejudice to any party by granting the request.

Therefore, plaintiffs' motion to substitute John Doe defendants 1, 2, 4, 5, 6, 7 and 8 with Mr. Mike, Adam Perera, Moneer Salem Almantheel, Patricia O'Hanlon, Michael Ryan Condit, Mohammad Munir and Adnan Javed respectively and to strike the [*4]remaining John Doe defendants from the caption is granted.

RPAPL § 1321 provides in pertinent part as follows: If the defendant fails to answer within the time allowed or the right of the plaintiff is admitted by the answer, upon motion of the plaintiff, the court shall ascertain and determine the amount due, or direct a referee to compute the amount due to the plaintiff and to such of the defendants as are prior incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels and, if the whole amount secured by the mortgage has not become due, to report the amount thereafter to become due.

When seeking an order of reference to determine the amount that is due on an encumbered property, a plaintiff must show its entitlement to a judgment. That entitlement may be shown by demonstrating defendant's default in answering the complaint, or by the plaintiff showing entitlement to summary judgment or by showing that the defendant's answer admits plaintiff's right to a judgment (see RPAPL §1321; 1-2 Bruce J. Bergman, Bergman on New York Mortgage Foreclosures, § 2.01[4][k] [note: online edition].

To that end, Mr. & Mrs. Perkins seek an order granting summary judgment as against defendants Frances Monteleone, Frank J.Monteleone, Wendy Monteleone, Elyse Scileppi, Linda Rodriguez and Philip Mr. Barry.

A motion for summary judgment may be granted only when there is no doubt as to the absence of any triable issue of material fact (Kolivas v Kirchoff, 14 AD3d 493 [2nd Dept 2005]). "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" (Celardo v Bell, 222 AD2d 547 [2nd Dept 1995]).

Once the movant has met this burden, the burden then shifts to the party opposing the motion to demonstrate via admissible evidence the existence of a factual issue requiring a trial of the action (Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 560 [1980]).In action to foreclose a mortgage, plaintiff moving for summary judgment establishes its case as matter of law through production of the mortgage, unpaid note, and evidence of default (Baron Associates, LLC v Garcia Group Enterprises, Inc., 96 AD3d 793 [2nd Dept 2012]).

A motion made pursuant to CPLR 3212 would require the annexing of pleadings under section 3212(b). "The pleadings" means "a complete set of the pleadings" (Wider v Heller, 24 AD3d 433 [2nd 2006]) or "all the pleadings" (Welton v Drobniki, 298 AD2d 757 [3rd 2002]). The requirement that a motion for summary judgment be supported by [*5]the pleadings is mandatory. In fact, the failure to include the pleadings would render the motion procedurally defective (Matsyuk v Konkalipos, 35 AD3d 675 [2nd 2006]; Wider v Heller, 24 AD3d 433 [2nd 2006]).

It has been held that the motion does not lie before joinder of issue "[a]lthough the papers present no triable issue" (Milk v Gottschalk, 29 AD2d 698 [3rd 1968]). The requirement that issue be joined before a motion for summary judgment is granted "is intended to show the court precisely what the plaintiff's claims and the defendant's position as to them, and his defenses, are" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:11, p 431) and has been strictly adhered to (Perla v Real Property Holdings, LLC., 23 Misc 3d 697 [NY Sup.2009]). It has also been held that the Supreme Court is powerless to grant summary judgment prior to joinder of issue (see CPLR 3212(a); Union Turnpike Associates, LLC v Getty Realty Corp., 27 AD3d 725, 728 [2nd 2006]).

Contrary to the requirements of CPLR 3011, Mr. & Mrs. Perkins did not reply to Mr. Barry's counterclaims. A reply to a counterclaim is mandated by CPLR 3011 and the failure to do so would render a motion for summary judgment premature since issue has not yet been joined (Union Turnpike Associates, LLC v Getty Realty Corp., 27 AD3d 725, 728 [2nd 2006]). Therefore summary judgment as against Mr. Barry must be denied as premature.

CPLR 2214 (b) provides as follows:

Motion papers; service; time

(b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day before such time.

It is noted that Mr. & Mrs. Perkins made their instant motion returnable on March 4, 2013 and served their reply to Mr. Barry's opposition papers on March 14, 2013, ten days later. Contrary to the requirements of CPLR 2214(b), they did not serve their reply papers at least one day before the return date of the motion. Although Mr. Barry did not address the late service of the reply in his opposition papers, the Court is mindful that Mr. Barry is incarcerated, proceeding pro se, and was unable to appear to orally oppose the late reply. Therefore, the court will not overlook the late service of the reply and will disregard it as untimely.

It is well settled that a plaintiff can not rely on evidence submitted for the first time in its reply papers to support a motion for summary judgment (see L'Aquila Realty, LLC v [*6]Jalyng Food Corp., 103 AD3d 692 [2nd Dept 2013]; GJF Constr. Corp. v Cosmopolitan Decorating Co., Inc., 35 AD3d 535, 535 [2nd Dept 2006]; Voytek Tech. v Rapid Access Consulting, 279 AD2d 470, 471 [2nd Dept 2001]). A fortiori, a plaintiff may not rely on documents submitted for the first time in papers served after they have served their reply.

In this regard, Mr. & Mrs. Perkins did not annex the answer of defendants Frances Monteleone, Frank J. Monteleone, Wendy Monteleone, Elyse Scileppi, and Linda Rodriguez to its motion papers or reply papers. They did, however, annex their answer to their supplemental affirmation. The court will not consider the answer of these defendants in support of plaintiff's motion for summary judgment (L'Aquila Realty, LLC v Jalyng Food Corp., 103 AD3d 692 [2nd Dept 2013]). As limited by the court's direction, the supplemental affirmation is considered solely on the issue of which defendants were required to be served with plaintiffs' instant motion papers in accordance with CPLR 2103(c).

Therefore, plaintiffs motion for summary judgment as against defendants Frances Monteleone, Frank J.Monteleone, Wendy Monteleone, Elyse Scileppi and Linda Rodriguez is denied without prejudice for failure to annex all the pleadings to their motion.

Inasmuch as plaintiffs' request for the appointment of a referee to compute pursuant to RPAPL §1321 is based, in part, on their assumed attainment of an order granting summary judgment in their favor as against defendants Frances Monteleone, Frank J. Monteleone, Wendy Monteleone, Elyse Scileppi, Linda Rodriguez and Philip Barry, that part of their motion is also denied as premature.

Mr. & Mrs. Perkins also sought dismissal of Mr. Barry's counterclaims and affirmative defenses pursuant to CPLR 3211(a)(7) and (b). When moving to dismiss or strike an affirmative defense or counterclaim as meritless, the plaintiff bears the burden of demonstrating that the affirmative defense or counterclaim is without merit as a matter of law (Mazzei v Kyriacou, 98 AD3d 1088 [2nd Dept 2012]). In reviewing a motion to dismiss an affirmative defense or counterclaim as meritless, the court must liberally construe the pleadings in favor of the party asserting it and give that party the benefit of every reasonable inference (id.). An affirmative defense or counterclaim should not be dismissed if there is any doubt as to its availability (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2nd Dept 2008]). Legal conclusions and facts contradicted by the record, however, are not entitled to the presumption of truth.

The first affirmative defense states that the plaintiffs have failed to state a cause of action for which relief can be granted. Since the issuance of Butler v Catinella, the Appellate Division Second Department has made clear that no motion lies to strike the defense of failure to state cause of action (58 AD3d 145 [2nd Dept 2008]). Such a motion amounts to an endeavor by the plaintiff to test the sufficiency of his or her own claim (see Mazzei v Kyriacou, 98 AD3d 1088 [2nd Dept 2012]). Butler overruled prior Second Department case law which held that failure to state a cause of action was not a [*7]proper affirmative defense (see CPLR 3211(b); Siegel, 7B McKinney's Practice Commentaries, C3211:38).

In paragraph twenty-nine of his answer Mr. Barry states that Mr. & Mrs. Perkins caused or prevented him from curing his default by engaging in certain acts which he sets forth in paragraphs "A" through and including "K". CPLR 3014 provides in pertinent part that every pleading shall consist of plain and concise statements in consecutively numbered paragraphs and each paragraph shall contain, as far as practicable, a single allegation. Mr. Barry's answer and counterclaims did not comply with CPLR 3014. However, Mr. & Mrs. Perkins had no difficulty understanding and addressing Mr. Barry's answer.

Mr. Barry made the following accusations against Mr. & Mrs. Perkins pertaining to the subject property: Mr. & Mrs. Perkins committed trespass. They also changed or destroyed some of the locks. They caused the termination of Mr. Barry's business and illegally took and disposed of Mr. Barry's business inventory. They altered and rented Mr. Barry's portion of the property to two tenants without authorization. They tortiously interfered with Mr. Barry's contractual obligations with his tenants.

Mr. Barry's answer has also requested affirmative relief in a set of paragraphs labeled "a" through "d", which follows a "wherefore" clause. In paragraph "a" he seeks injunctive relief, in paragraph "b" a declaratory judgment, and in paragraph "c" he seeks a declaratory judgment of Mr. & Mrs. Perkins liability as well as monetary damages. Paragraph "d" requests any further appropriate relief. Mr. Barry also requests that the request for affirmative relief be deemed counterclaims.

Presuming that the facts alleged in Mr. Barry's affirmative defenses and counterclaims are true and giving Mr. Barry the benefit of a favorable inference, these defenses and counterclaims may only be struck pursuant to CPLR 3211(b) if Mr. & Mrs. Perkins demonstrates that they have no merit as a matter of law (Mazzei v Kyriacou, 98 AD3d 1088 [2nd Dept 2012]). Mr. & Mrs. Perkins have not shown these defenses and counterclaims to be meritless as a matter of law. Instead they have shown that they are factually disputed. The sworn statements submitted by Mr. & Mrs. Perkins do not conclusively established Mr. Barry's claims to be untrue. Therefore, the remaining affirmative defenses and counterclaims may not be stricken pursuant to CPLR 3211(b). It is noted that Mr. & Mrs. Perkins submitted an affidavit of Thomas Perkins signed in Middlesex, New Jersey and notarized by a notary who is commissioned in the State of Florida. Should Mr. & Mrs. Perkins intend to offer an affidavit notarized outside of the State of New York on a future motion for an order of reference, it should be accompanied with an appropriate certificate of conformity in accordance with CPLR 2309(c).

Inasmuch as Mr. & Mrs. Perkins have not shown their entitlement to judgment as against defendants Frances Monteleone, Frank J. Monteleone, Wendy Monteleone, Elyse Scileppi, Linda Rodriguez and Philip Barry, they are, therefore, not entitled to an order of reference pursuant to RPAPL §1321 as against any defendant.

[*8]CONCLUSION

Mr. & Mrs. Perkins motion for an order granting summary judgment in their favor as against defendants Frances Monteleone, Frank J. Monteleone, Wendy Monteleone, Elyse Scileppi, Linda Rodriguez and Philip Barry is denied without prejudice.

Mr. & Mrs. Perkins motion for an order dismissing Mr. Barry's counterclaims and affirmative defenses pursuant to CPLR 3211(a)(7) and (b) is denied.

Mr. & Mrs. Perkins motion for an order granting judgment against defendants United States of America, City of New York and the New York City Bureau of Highway Operations for all relief requested in the complaint pursuant to RPAPL § 1321 is denied without prejudice.

Mr. & Mrs. Perkins motion for an order appointing a referee to ascertain and compute the amount due pursuant to RPAPL § 1321 is denied without prejudice.Mr. & Mrs. Perkins motion for an order substituting "John Doe 1", "John Doe 2", "John Doe 4", "John Doe 5", "John Doe 6","John Doe 7" and "John Doe 8" with Mr. Mike, Adam Perera, Moneer Salem Almantheel, Patricia O'Hanlon, Michael Ryan Condit, Mohammad Munir and Adnan Javed, respectively; and striking the remaining "John Doe" defendants from the caption is granted.

The foregoing constitutes the decision of this court.

Enter_______________________________X

J.S.C.