Investors Bank v J&M Prospect Place Enters. LLC

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Investors Bank v J&M Prospect Place Enters. LLC 2021 NY Slip Op 30204(U) January 8, 2021 Supreme Court, Kings County Docket Number: 524919/19 Judge: Lawrence S. Knipel 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] KINGS COUNTY CLERK 01/19/2021 03:19 INDEX NO. 524919/2019 P~ NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 01/19/2021 At an IAS Term, Part Comm 6 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Counhouse, at Civic Center, Brooklyn, New York, on the 8 111 day of January. 2021. PR.ES ENT: HON. LA WREN CE KNf PEL, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - ·- - - - - - -X INVESTORS BANK, Plaintiff, - against - Index No. 524919/19 .l&\,l PROSPECT PLACE [NTERl'IUSES LLC; MENDEL DEUTSCH~ NEW YORK CITY BUREAU OF HJGHWA Y OPERATIONS; NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT; - cmd JOHN DOES "I" - "1 O" and XYZ CORPORATION "]" - "1 O", said names being fictitious, parties intended being possible tenants or occupants premises, or Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X The following e-filed paoers read herein: NYSCEF Doc Nos. Notice of tvfotion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affinnations) Armexcd 20-28 Opposing Affidavits (Affirmations), _ _ __ 34-35 ----- Upon the foregoing papers in this action to foreclose a commercial mortgage on the property at 1097 Prospect Place in Brooklyn (Property), plaintiff Investors Bank (!nwstors) moves (in motion sequence [mot. seq.) two) for an order: (1) granting it summary judgment against detendants J&M Prospect Place Enterprises LLC (J&M} and Mendel Deutsch (Deutsch}, pursuant to CPLR 3212; (2) appointing a referee to compute the amount due for principal and interest; (3) striking J&M and Deutsch's affirmative 1 of 6 [*[FILED: 2] KINGS COUNTY CLERK 01/19/2021 03:19 P~ INDEX NO. 524919/2019 RECEIVED NYSCEF: 01/19/2021 NYSCEF DOC. NO. 38 defonse::. pursuant to CPLR 3211 (a) (7)~ and ( 4) amending the caption to delete the '"John Doe'' and "XYZ Corporation'' defendants. Background On November 14. 2019, Jnvestors com1T1eoced. this. com.merci<.11 foreclosure action by filing a summons, a verified complaint and a notice of pendency against the Property. On February 2 l, 2020, defendants J&M and Deutsch collectively answered the complaint and asserted 25 affirmative defenses, including that plaintiff refused tender of payment, unclean hrtnds and lack of standing. Investors now moves for summary judgment against }&M and Deµtsch; 1;1.n order of reference and dismissal of defendants' affirmative defenses. Investors' motion is suppc)[ted by an affictavit from Joseph Sicinski. (Sicinski), an Assistant Vice President and Senior Commercial Workout Officer of Investors, who attests that Investors seeks to foreclose on an October 21, 2014 Amended. Restated and Consolidated Mortgage against the Property in the amount of $2,287,500.00, which secures payment under an October 12. 2014 Amended. Restated and Consolidated Promissory Note in favor of Investors. Sicinski attests that Investors "is the current holder" of the consolidated mortgage, the consolidated note and "all of the other underlying instruments, documents or agreements otherwise evidencing or securing the amounts due ..." Investors submits copies of these Imm documents. Sicinski attests that "[t]he M011gagor defaulted under the terms and conditions of the . . . Loan Documents by, if1ter alia, failing or omitting to pay the . .. 2 of 6 [*[FILED: 3] KINGS COUNTY CLERK 01/19/2021 03:19 P~ NYSCEF DOC. NO. 38 INDEX NO. 524919/2019 RECEIVED NYSCEF: 01/19/2021 installml:!nt of pr]nci pal and interest which became due and payable on August I, 2019" and ''has remained delinquent in its payments." 1 J&M and Deut:-;ch. in opposition, submil an attorney affirmation arguing that defendants should have an opportunity "to le1::1m more about the defonses through discovery and/or discovery-related motions." Defense counsel argues that "[t]hc Court should deny Plaintiff's motion for summnry judgment because, inter alia, Defendants' affirmative defenses will rcdse triable issues of fact . . . " and ''the Court should deny Plaintiffs motion as premature because questions of fact remain in this matter due to the Llftirmritivc defenses .. {emphasis adde_d). In acidition, Deutsch submits an affidavit noting that defendants asserted "'various" affirmative defenses, including "that payments were tendered under the agreement but that Plaintiff refosed to accept said payments. that Plaintin~s claim is barred hccm1se of the doctrine of unclean hands, and that Plaintiff YlOlated rhl! duty or good faith and fair dealing.'' Deutsch argues that Investors prematurely moved tor summary judgment before it sought discovery regarding defondants' a f:fomative defenses. Notably, Deutsch provides no lestl!nonial or docmm:mary evjdence to support any of defendants' at1irmative defenses. 1 Sicinski, however, also attestst that ''[ s]ince the acceleration of the loan, Plaintiff has received three (3) post acceleration payments ... from the Mortgagor{,]" which were applied to principal, accrued interest and a real eslate escrow. 3 of 6 [*[FILED: 4] KINGS COUNTY CLERK 01/19/2021 03:19 NYSCEF DOC. NO. 38 P~ INDEX NO. 524919/2019 RECEIVED NYSCEF: 01/19/2021 Discussion Summary judgment is a drastic remedy that deprives a litigant of his or her day in court and should, thus, only be employed when there is no doubt as to the absence of triabte issues of material fact (Kolivas v Kirchoff, 14 AD3d 493 [2005]; see also Andre v Pomeroy, 35 NY2d 361, 364 (1974]). "The proponent of a motion for summary judgment must make a prima facje showing of entitlement to judgment, as a matter of law. tendering sufficient evidence to. demonslratc the absence of any material issues of foct" (Manicone v City of New York, 75 AD3d 535, 537 [2010]. quoting Alvarez v Prospecvl Hosp., 68 NY2d 320, 324 [1986]; see also Zuckerman v City of New York, 49 NY2d 557, 562 [1980)~ Winegradv New York Univ. Med. Ctr.~ 64 NY2d 851, 853 [ l 985J). 1f it is determined that the movant bas made a prima facie showing of entitlement to summary judgment, "the burden shifts to the opposing party to produce cvidcnti<1ry proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action"' (Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493 [1989]). Generally, to establish prima facie entitlement to judgment as a matter of Jaw in an action to foreclose a mortgage, a p1aintiff must produce the mortgage, the unpaid note, and evidence of default (see Deutsche Bank Natl. Trust Co. v Karibandi, 188 AD3d 650, 651 [2020]: Christiana Trust v Moneta. 186 AD3d l 604, 1605 [2020]; Deutsche Bank Trust Co. Ams. v Garrison, I 4 7 AD3d 725, 726 [2017)). Where the issue of standing is raised by a defendant, a plaintiff must also establish its standing as part of its prima facie cnse (see Deutsche Bank Trust Co. Ams. v Garrison, 147 AD3d at 726; Security Lending, 4 4 of 6 INDEX NO. 524919/2019 [* 5] [FILED: KINGS COUNTY CLERK 01/19/2021 03:19 Pij RECEIVED NYSCEF: 01/19/2021 NYSCEF DOC. NO. 38 Ltd. v Ne·w Real1y Corp., 142 AD3d 986, 987 [2016]; LGF Holdings. LLC v Skyde/, 139 AD3d 814, 814 [20 l 6 J). Where a plaintiff establishes prima facie entitlement to judgment. the burden then shifts to the defendant to raise a triable issue of fact as to a bona fide defense 10 the action (CitiMortgage, Inc. v Guillermo, 143 AD3d 852, 853 [20161: Mahopac Natl. Bankv Baisley, 244 AD2d 466, 467 [1997]}. In support of its motion for summary judgment and an order of reference, Investors has demonstrated its prima facie entitlement to judgment as a matter of law by submitting copies of the loan documents and an affidavit attesting to the payment default nndcr the Lerms of the loan (see Bank of New York Mellon v Genova, 159 AD3d 1009, 10 I 0 [20 l 8J). Investors also has demonstrated, prima facie, that it was the holder and owner of the consolidated note before the action was commenced (see Castle Peak 2012J Loan Trust Mtge, Backed Notes, Series 20/ ] .. / v Sotlile, 14 7 AD3d 720, 722 [2017]; JP Morgan Chase Bank v Schott, 130 AD3d 875, 876 [2015]). Defendants have failed to raise an issue of fact to preclude summary judgment. The rnere fact that defendanls have asserted 25 aflirmative defenses in their answer is insufficient to raise an issue of fact or render Investors' summat)' judgment motion premature. The burden shifted to dcfenda111s to produce admissible evidence supporting their affirmative defenses, and they failed to suhmit any evidence. Accordingly, it is hereby ORDERED that Investors' motion (mot. seq. two) is only granted to the extent that: ( l) Investors is entitled to summary judgment against J&M and Deutsch; (2) the appointment of a referee is warranted, and an order of reference shall be settled on notice; s 5 of 6 [*[FILED: 6] KINGS COUNTY CLERK 01/19/2021 03:19 P~ NYSCEF DOC. NO. 38 INDEX NO. 524919/2019 RECEIVED NYSCEF: 01/19/2021 and {3) the ...-:aptior: is amended to delete the "John Doe'' and 'XYZ Corporation" defendan ls. This constitutes the decision and order of the court. ENTER, J. S. 6 6 of 6

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