Caputo v 6901 LLC

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Caputo v 6901 LLC 2023 NY Slip Op 33610(U) September 22, 2023 Supreme Court, Kings County Docket Number: Index No. 511156/2023 Judge: Leon Ruchelsman 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. INDEX NO. 511156/2023 FILED: KINGS COUNTY CLERK 10/16/2023 11:31 AM NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 10/16/2023 SUPREME COURT OF THE!STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: PART 16 - - - - - - . - - - - : . - - - - . - - i - - - - ... - - - - - . . .' -----.-x ANDREA CAPUTO, Plaintiff, Decision arid order ; Index No. - against- - 511156/2023 fr901 LLC Defendant, September 22, 2023 ---· ----------.----- . : ·---·--·. -·---. ---· -- .---x Motiori. Seq. #2 PRESENT: HON. LEON R(!CHELSMAN The plaintiff has moved seeking summary judgement i t is entitled to attorney~s fees pursuant to the rnortgage. defendant opposes the motion. parties and arguments held. The Papers were submitted by the After reviewing all the arguments this court now makes;the following determination; According to the complaint the plaintiff is the mortgagee and holder of mortgage. in the amount of $900,500. The mortgage was actually consolidated from two prior mortgages and was recorded on June 10, : 2009. In 2017 a lawsuit was .filed against Caputo alleging that pursuant to a default of the mortgage, which oCcur~ed in 2011, Caplitb ~as entitled to coll~ct rent~ ~ia an assignment from the mortgagor but was also required to pay for all necessary charges ahd expenses of the property. The iawsuit included nine caus·es of action essentially alleging that Caputo 1 collected the rents but failed to satisfy her obligations to pay all necessary expenses. The seventh cause of action alleged that due to Caputo's conduct the mortgage should be cancelled and ''Caputo is precluded! from obtaining any remedy concerning this [* 1] 1 of 4 INDEX NO. 511156/2023 FILED: KINGS COUNTY CLERK 10/16/2023 11:31 AM NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 10/16/2023 Consolidated Mortgage Note" (~, Complaint '1[125 to 6901 LLC v. . . Caputo, [NYSCEF Doc. No. 2]). Index Number:507756/2017 The eight . . cause of action asserted theentiremortgag e was a 'sham' since it was not supported/by any considera:tion and could not support any foreclosure initiated ·by Caputo at all. That lawsuit wai dismissed in an order dated November 18, 2019 and the decision was appealed. appellate determination. The parties await an In any event, pursuant to Article 12 of the mortgage, Caputo: seeks the reimbursement of legal .fees.. As noted, the defendant;opposes the mo'l:i.on. :conclusions of Law Where the material facts at issue in a case are in dispute summary judgment cannot be granted (Zuckerman v; City of New York, 49 NYS2d 557, 427 NYS2d 595 [1980]). Generally, it is for the jury, the trier of fact to determine the legal cause of ahy inju:.ry, however, Where only one conclusion may be drawn from the facts then the question of legal cause may be decided by the trial court as a rna:tter of law (Marino 136 NYS3d 324 [2d Dept .. , 2021) v. Jamison, 189 AD3d 1021, w Article 12 of the consolidated mort9age states that ''if any action or proceeding:be commenced (except an action to foreclose said mortgage of to collect the debt secured thereby), to which action or proceeding!thepar ty of the first part is made a party, 2 [* 2] 2 of 4 INDEX NO. 511156/2023 FILED: KINGS COUNTY CLERK 10/16/2023 11:31 AM NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 10/16/2023 necessary to., d$.fend or uphold. the. lien of or: in which it be.comes i ; 5:aid rno.r:tgage, all .$0.~s pa,id by the.~ party:- of the fi":i:-st p·cfrt for ' to pr,?sec-ute or defend the· rights the ·expense of any l~tigation and lien created by $aid mortgage (inclqding reasonable counsel fees) , s ha 11 be p.3..:td :by the party or th,e. second part •.. " C.ons-olidated Mortgage, !12 [NYSCEF Doc. No. 2]). • (see, ·Thu$_, the .above 5 par·agra:t>h requires· ·t~e defendant to· _pay all fees in two sqenarios, the first ; is any ac:tiqn where. Caputo is a party, regardless of the nature of that lawsuit, and second in any ac.tio.n, even if Ca:pu~o is not a partyi where it is ne.ce.ssa.ry to d~f.e_np anct uphol_d th~ lien. 'I'he c;;laus~ -first state_s ·that ih "any .action,, where Caputo: is a party then: Cap·uto is entitl·ed. to fees. Next., the clause states "or in which it becomes necessary to defend or uphold t}1e. lien of said mortgage" ( id) . The .disjunctive 'or'· serv.es to separate: and describe ano:the:i;- instance where· Caputo would b~ entitled to legal fees. There· i·s -:p.o reasonable w?J.y to. re~d -thact p,;3.ragr:aph as encompassing· one ~c~riario, riamely onl1 _actiorts seeking t-9 uphold th¢ lien.. If that were true then the weird 'or' serves no purpose and really ·makes .no 5,ertse... Th,~i--e.£.ore, the nature of the 20'17 ac-tiqn is really rtot relevant since ah action a party. ·was filed in which C.aputb was The- fact the rnajot-ity ·of that action e.oncerned mon~y- damages does. not mean the ciaU:se is inapplicable~ Therefore, there are no questiorts of fact that Caputo may be 3 [* 3] 3 of 4 INDEX NO. 511156/2023 FILED: KINGS COUNTY CLERK 10/16/2023 11:31 AM NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 10/16/2023 r.eimbursed fo.r Thu-s, \\·t=!._11 ~urns pa_idi' by- her i_n the 2·011 a·ction. the i;no_tion s . eeking s1."i,iran~ry j_udgement is granted. :. :. Howev·er, the precise amount tha:t c·aputo is owed is certainly -subject to review.. hearing before a ~herefore; the parties w111 be ri◊tifi-ed of a judicial heating officer where Caputo may present evidence· deni.c/rtst:tatin· g the: actu,ail sums she· paid ·for ''.reasonabl·e atto·rn.ey'Ls fees" .and ot,her e_g:pense.$ if :any. The defendant .may offer ~vidence of any representatio n pursuant to any J:ristlra·nce policy or other reasons C-aputo did. not actually pay for such legal se,rvice.s.. T.he. cot1.rt. wil_l revi.ew the conclusions of the hearing offic~r. so ordered·, ENTER~ DATED: September :22, '2023 Broo.klyn NY Ho_n. JSC 4 [* 4] 4 of 4

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