Paulino v Espinal

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Paulino v Espinal 2018 NY Slip Op 34127(U) January 12, 2018 Supreme Court, Suffolk County Docket Number: Index No. 602888/2017 Judge: Joseph Farneti Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] SUFFOLK COUNTY CLERK 01/24/2018 11:22 AM NYSCEF DOC. NO. 19 INDEX NO. 602688/2017 RECEIVED NYSCEF: 01/24/2018 SHORT FORM ·ORDER INDEX NO. 602888/2017 'SUPQEME COURT- STATE OF .NEW YORK I.A-.S. TERM, PART 37·- SUFFOLK -COUNTY .HON. JOSEPH FARNETI .Acting Justice Suprt;,tne C().Urt ANGEL PAUUNO c1nd ANAis PAULINO, Plaintiffs, -againstLISA ESPINAL, Defendant ·ORIG. RETURN DATE: JULY31, 2017 FINAL SUBMISSION DATE: OCTOBER 12, 20.17 MTN. SEQ.#: 001 MOTION: MD .PLTF'S/PET'S ATTORNEY: LAWOFFIOE OF CASTIGUA-RUBINSTEIN AND ASSOCIATES 44~ BROAD HOLLOW ROAD~ -CL-1 MELVILLE, NEW YORK 11747 63 t-465-0444 DEFT'.S/RESP ATTORNEY:. JEANNIE V. DAAL, ESQ. 70 E. MAIN STREET - 2N• FLOOR. PATCHOGUE, NEW YORK. t1772 631-758-1976. Up.on the following. papers numbered 1 to 5 r.ead on thi"s motion·~:_ __ . FORSUMMARYJ UDGMENT Notice .of Motion and supporting papE!rs 1-3 ; Affirmation in Opposition arid supportir\g papers . 4 5 : itis, · ORDERED that this motion by plaintiffs ANGEL PAULINO .ahc:i ANAIS PAULINO (collectively "plaintiffs") for an Order, pursuant to CPLR 3212, granting plaintiffs summary judgment, is hereby DENIED for the reasons set forth .liereihafter. The Court has· received opposition to this application from defendant USA ESPINAL. The. u rtderlying facts of this matter as alleged· by· plaintiffs are as follows: In or about May of2007, plaintiff ANGEL PAULINO r5urchased the property .commonly known as 3.03 Cabota Avenue, Copiague, New York ("Property").. on or aboufMay S-, 2007, plaintiff executed a mortgage and note in the·amountof$ 396,000 i"n favor bf Wells Fargo Bank, NA CUWells Fargo").. • 1 -of ,-------------------------·-·····-···-·· · ·4- - · · · · - · - - · · - · - - - · - · - · ····-·--···--····-·--··-·--···-·-······-·········-··· [*FILED: 2] SUFFOLK COUNTY CLERK 01/24/2018 11:22 AM NYSCEF DOC. NO. 19 INDEX NO. 602688/2017 RECEIVED NYSCEF: 01/24/2018 FARNETI, J. PAULINO v. ESPINAL INDEX NO. 602688/2017 PAGE2 In or about April of 2009, plaintiffs requested the services Qf defendant to perform a modification of the mortgage, which efforts failed. In or about September of2010, plaintiffs entered into an agreement with defendant, allegedly under duress, whereby defendant would purchase plaintiffs' mortgage debt for $220,000. In return; plaintiff ANGEL PAULINO anddefendantwould execute a promissory note in the amount of $220,000 plus interest, and · defendant would obtain a lien :an the Property. Also in or aboutSeptember of 2010, pla.intiffANGEL PAULINO, "under pressure and persuasion" from defendant, was charged $50,000 for the purpose of paying current property ta:xes and any taxes in arrears on the Property. Any remainder of such payment would be applied towards repayment of the principal on the promissory note. Plaintiff ANGEL PAULINO allegedly paid the $50,000 charge. On or about November t, 2010, plaintiff ANGEL PAULINO allegedly entered into a promissory installment note with defendant in the principa/amount of $220,000, for a 20-year term. The agreement indicates payments of $2,500 monthly would be paid to defendant. Previously, on or about November 5, 2009, Wells Fargo assigned the subject mortgage to Kondaur Capital Corporation ("Kondaur"). On or about November 29, 2010, Kondaur assigned the mortgage to defendant. · On or about September 29, 2014, defendant sent a letter to plaintiffs stating in sum and substance that plaintiffs were at risk of losing their home due to defaulting on the mortgage. Plaintiffs allege thatthey were not given a payoff letter or an accounting of their payment history regarding the promissory note. Plaintiffs further allege that defendant·has. refused to furnish the original ·mortgage and/or note to plaintiffs, and has refused to furnish documents regarding the · · paymentof property taxes relating to the $50,000 payment by plaintiff ANGEL PAULINO. . On br about May 27, 2014, plaintiffs received a letter frotn thef.Suffolk County Treasurer stating. that payment for 2009/2010 taxes oh the Property were not made. The statement reflected a balance of $15;3.62.78. Plaintiffs contend that defendant refuses to pay the property taxes. as promised, and therefote commenced the instant action against defendant Plaintiffs assert six causes of action, to wit: unjust enrichment, conversion, fraud, breach of contract (two .causes of action),.and violation of General Business Law§ 349. 2 of 4 -------------------·--···-·-···--······--···-··········-·······················--···-···· ···························-········ ................................. . [*FILED: 3] SUFFOLK COUNTY CLERK 01/24/2018 11:22 AM NYSCEF DOC. NO. 19 INDEX NO. 602688/2017 RECEIVED NYSCEF: 01/24/2018 FARNETI, J. PAGE3 PAULINO v. ESPINAL INDEX NO. 602688/2017 Plaintiffs have now filed the instant motion for summary Judgment presumably on the first through fifth causes of action. Plaintiffs seek $500,000 on the firstcause of action, $2 million on each ofthe second and third causes of action, $100,000 on each of the fourth and fifth causes of action, and ''a money judgment for actual damages to be determined at trial" on the sixth cause of action. Plaintiffs contend that the foregoing facts are undisputed, and therefore summary judgment is appropriate. Plaintiffs.inform the Court that they are.at risk of losing their home ih a tax lien sale by the County of Suffolk. In opposition, defendant alleges that plaintiffs have failed to submit a promissory note signed by plaintiff ANGEL PAULINO; that plaintiffs have not suffered any damage as a result of defendant purchasing their $396,000 mortgage for $220,000; and that·the payment or non-payment of taxes on the Property does not evidence any wrongdoing on the part of the defendant, or any damage to plaintiffs, who are non-paying mortgagors. Summaryjudgment is a drastic remedy and shotJld only be granted in the absence of any triable issues of fact ( see Andre v Pomeroy, 35 NY2d 361 [ 19741). On a summary judgment motion, the court's function is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. If such issues exist, or "a material issue of fact is arguable, summary judgment should be denied" (Celardo v Bell, 222 AD2d 547 [1995]). Court may only grant a motion for summary judgment when a moving party makes a prima facie showing of entitlementto a judgment as a matter of law and offers sufficient evidence to demonstrate absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY3d 320 [1986}; Napolitano v Suffolk :County Dept' of Public Works; 65 AD3d 676 [2009]). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad vNew York Univ.· Med. Ctr., 64 NY2d 851 [1985]; Boone v New York City Tr. Auth., 263 AD2d 463 [19991). . Here, the Coµrt finds thatplaintiffs failed to make a prima fac;e showing of entitlement to judgment as a matter of law. As discussed hereinabove, plaintiffs and defendant allegedly made·an agreement with respect to the mortgage on the Property, but no such agreement has been submitted to the Court 1 and the promissory note submitted is not signed by plaintiffANGE:L PAULINO. Furthermore, plaintiffs have not established that they are entitled tq the damages sought in the instant application.. Inasmuch as plaintiffs failed to meet their Prima facfe.burden, itis .urmecessary to consider whether the papers 3 of 4 [*FILED: 4] SUFFOLK COUNTY CLERK 01/24/2018 11:22 AM NYSCEF DOC. NO. 19 INDEX NO. 602688/2017 RECEIVED NYSCEF: 01/24/2018 PAULINO v. ESPINAL FARNETI, J. PAGE4 INDEX NO. 602688/2017 submitted by defendant inopposition to the motion were sufficient to raise: a triable issue of fact (see McMillian vNaparano,61 AD3d 943 [2009]; Yong Deok Lee v Singh, 56 AD3d 662 [2008]). Accordingly, this motion by plaintiffs for summary judgment is .DENIED. The foregoing constitutes the decision and .Order of the Court. ~ · · Hpsem~ Dated: January 12, 2018 A· ting Justice Supreme Court FINAL DISPOSITION X 4 of 4 NON~FINAL DISPOSITION

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