Novato 2012, LLC v Coney Is. Ave., LLC

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Novato 2012, LLC v Coney Is. Ave., LLC 2015 NY Slip Op 32506(U) December 9, 2015 Supreme Court, Kings County Docket Number: 506585/2013 Judge: Carolyn E. Wade Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: KINGS COUNTY CLERK 01/22/2016 12:14 PM 1] NYSCEF DOC. NO. 43 INDEX NO. 506585/2013 RECEIVED NYSCEF: 01/22/2016 FILED JAN 1 5 2016 l!lllQiCOUN!'i rurutSOffJC< At Part 84 of the Supreme Court of thi; State of New York, held in and for lhe County of Kings, at the CourthDuse, located al Civic Center, Brookly11, Ne•Y York un - - ---"··~· ----·---~ thefdayofDecember2015 PRF:SENT: IION. CAROLYNE. WADE, Justice -·-----------------------------------------------------------------------)( NOVA1'0 2012,LLC, Plaintiff, Tudex No. 506585/201.1 DECISION/ORDER CONEY ISLAND AVENUE, I.LC, F.TLAT OilLMAN, DORIS MENAS I-IE, NEW YORK CITY ENVIRONMEN'f AL CON'f'ROL DO ARD, and "J(}f-fi.l DOE II!" t11rough "JOHN DOE #15," the fifteen nan1es being fictitious and unk11own to t\1e plaintiff, the per.qon or parties i11te11ded being the tenunts, occupm1ts, persons or corporations, if any, having or claiming an interest in or lien upon tl1c pren1ises described in the complain(, Defendants. ------------'C-----------------------------------·-------·---------------X Recitation, as required by CPLR §2219(a), of the papel"s Ci<"S-4 V, Ll,C's Motion: con.~idcn:d 111 the revic'v or [* 2] Papers Order to Show Cause/Notice of Motion and Affidavits/ Affirmations Anne>:ed ........................ . Cross-Motion and Affidavits/Affirmations .......... . Answering Affidavits/Affirmations...................... Reply Affidavits/ Affirmations ...................... .. Memoranda of Law ........................................ Numbered 2 !Jpon the foregoing cited papers, and after oral argu1ncnt, Ci<'S-4 V, LLC's n1otio11 to be subs(itutcd as the plai11tifl; and to a1nend the caption, is decided as follov.o;; 111.e underlying action was connnc11ced by Novato 2012, !,LC {"l'laintift'') to fore.;losc 011 a mo11gage which encumbers real property located al 1812 Cone)' Island 11230. According to the ple<lding~. A~-enue, Brooklyn, NY GrcenPoi11t Mortgage funding, Inc. ("GrccnPoint'') assigned the 11ote and 1nortgage to Plai11tiff prior to lhe comn1encen1ent or this ac1io11 (Exh.ibit "3" of Defendant's opposition). An Ainended Verified Answer was interposed by defenda11t bonuwcr, Co11cy Island Avenue !,LC, with several af!irmativ<0 defenses and counlerclai1ns, including allegations that Plaintiff misapplied its real estate tax payinents to\Vards t!1c mortgage. In support oft he instant motion, CFS-4 V, UC submits a supporting affidavit !Toni Julie A. Tumia ("Tumia"), its autl1orf..:ed representative. ·r umia attests that 011 March 6, 2015, Plaintiff "transferred, sold, a11d assigned all of its interests" in the subject note and mortgage to Cl'S-4 V, LT.C. ·ro buttress her a\'ennent, CI.-S-4 V, Lf.C submits a copy oft!1e note ullollb'<' (Exhibit "D" ofCl'S-4 V, LLC's motio11). Tn1nia asserts that the defendm1ts will not be prejudiced b)' the substitution of CFS-4 V, LI ,c as the plaintiff since the "rigl1ts and obligations of !lie lender 1111der the note and mortgage remain the same no 1nalter wbo the !ender is." Dy opposition, 1nortgagor Coney Island Aven11c l.T,C, and defendant Doris Mcnashe, a 2 [* 3] b'liarantor of the n1ortgdgc note (collectively "Dcfe11danls"), argue tl1at Plaintiff collected property tax escrow payincnts from the entity but did not pay the property taxes (f<:xhihit "!" of Defendants' opposition). 'J"hooy contend that the Notice of Default 11ot only inacc11ratcly states that Coney Tsland Ave11ue f,LC owes property lax arrears and fees of$10,597.34, but also accelerates the payment of $195,933.59 in unpaid principal, interest and laK' fees (Exhibit "2" of Detendants' oppositio11). TJ1e Defe11dants add that Plaintiff is attempting to avoid liability by substituting CFS-4 V, Ll,C, and request thal the i11stant application be denied. Cf'S-4 V, LLC, in reply, asserts that it \\'US awaroo of the defanl( in tl1e note at the time of transfer; thus, it is nnt avoiding ·'potential liability arising from tl1e counterclai.tns and defe11scs asserted by the Defendants." Conseq11ently, Ct"S-4 V, T.LC 1naintail1s that it sl1ould be substih1tcd as the p!ai.t1tiff since there is no prejudice to tl1e Defendants. CPLR § 1018 provides that "[u]pon any transfer ol'intcrest, the action may be co11tinued by or ugainst the original parties transferred to be sub~titutcd unle~s the cowt directs the person to whom the interest is or joine<l in the action:· In the insta11t case, Tu1nia slates that on March 6, 2015, Plaintiff"transferred, sold mid assigned [e1nphasis added] all uf its rigl1t[s ], title, and interest in and to tlic Note arid Mortgage" to CFS-4 V, LLC. cr·s-4 V, !,LC sub1nits a note allo11gc, whicl1 n1akes reference to a paid traiisfer of tl1e note from Plaintiff to it (Exhibit '·'B" ofDefendants' opposi(ion). !Io•vevcr, it does not produce a >vrilloo11 assigrnnent. Moreover, at the botton1 of the 11ote allonge, tl1e following statemoont is found ir1 largc bold letters: "THIS N()TE Af,LONl'iE SH<lULD BE PERMANENTLY AF1'1XF.D 1·0 TI~E PROMISSORY N(JTE DESCRIBE!) AROVR." The court notes that tl1c subject note mid murtgage are not annexed to the 1noving paper~. 3 [* 4] ~·ucthermore, the second paragraph oft he 11ote allonge 1iro\•ides, in pertine11t part: "Pay to t\1e order ofCFS-4 V, LLC [... ] \vitl1out recourse, representation or \Van:anty, express or in1plicd, except as provided in that certain sold Loa11 Sale Agreement, dated March 4, 24115 [...]." CFS-4 V, LLC neither produces the loan sale agreement nor docs i!s affiant provide informatio11 about the exception referenced therein. Conscqtiently, this court determines that CFS-4 V, T.LC has nor Sllbn1itted Sllfficie11t docun1entary evidence to support lhe rdicr requested (see Citiniortgage, Inc. v. Forbes, 2013 NY Slip Op 50577(1J) tSup C:t, Kings (:ty 2013]). Accordingly, based iipon the above, CFS-4 V, LLC's 111otion to be substituted 48 the plai11tiff is denied without prejudice. A11 remaining contentions, have bee11 meticulously exmnined, and arc nov.' rendered n1oot. ·rhis constitutes the Decision/Order of the court. FILED JAN 1 5 2016 ~llGS COUNll WJlR(.lllU 4

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