Opinion
114865/2009
09-02-2014
Inwood Equities Group, Inc., Plaintiff v. Wadsworth Condos, LLC, CARNEGIE HOLDINGS, LLC, 43 PARK OWNERS GROUP, LLC, SPARROW CONSTRUCTION CORP., PERRY FINKELMAN, MARK ENGEL, ELI BOBKER, BEN BOBKER, and INWOOD EQUITIES GROUP, INC., Defendants
For Plaintiff David H. Cohen Esq. Moritt Hock & Hamroff LLP 400 Garden City Plaza, Garden City, NY 11530 For Defendants Wadsworth Condos, LLC, Carnegie Holdings, LLC, Eli Bobker, and Ben Bobker Marc M. Coupey Esq. 441 Sawmill River Road, Millwood, NY 10546 Jonathan D. Warner Esq. Warner & Schneuerman 6 West 18th Street, New York, NY 10011
For Plaintiff
David H. Cohen Esq.
Moritt Hock & Hamroff LLP
400 Garden City Plaza, Garden City, NY 11530
For Defendants Wadsworth Condos, LLC, Carnegie Holdings, LLC, Eli Bobker, and Ben Bobker
Marc M. Coupey Esq.
441 Sawmill River Road, Millwood, NY 10546
Jonathan D. Warner Esq.
Warner & Schneuerman
6 West 18th Street, New York, NY 10011
Lucy Billings, J.
Community Preservation Corporation (CPC) commenced this foreclosure action to foreclose a mortgage against block 2170, lot 308, at 1 Wadsworth Terrace, New York, New York. Inwood Equities Group, Inc., was a defendant and cross-claimed against co-defendants because it held a subordinate mortgage on the same real property as security for co-defendants' promissory note.
Defendants Wadsworth Condos, LLC, and Carnegie Holdings, LLC, which together owned an 80% interest in the property, were tenants in common with defendant 43 Park Owners Group, LLC, which owned a 20% interest. These three defendants entered a Management Agreement governing the development of a condominium building on the property. Wadsworth Condos, Carnegie Holdings, and their guarantors Eli Bobker, the managing member of Wadsworth Condos, and Ben Bobker, an owner of a beneficial share in that limited liability company (LLC), maintain that the Management Agreement imposed specific management duties on defendants Finkelman and Engel. Finkelman and Engel were co-owners and managers of the tenant in common with Wadsworth Condos and Carnegie Holdings, 43 Park Owners, and also co-owners of a lender to the tenancy in common (TIC), Inwood Equities, of which Finkelman was the president as well. The duties owed by Finkelman and Engel included managing the condominium project's construction activities, records, and accounts to ensure its completion according to the parties' plan.
The loans to the TIC comprise promissory notes and mortgages on the property executed by Wadsworth Condos, Carnegie Holdings, and 43 Park Owners to CPC and separately to Inwood Equities, its mortgage being subordinate to CPC's. Eli Bobker, Ben Bobker, Finkelman, and Engel each personally guaranteed the notes.
The court granted CPC summary judgment on the foreclosure claim. Community Preserv. Corp. v. Wadsworth Condos LLC, 37 Misc 3d 1219 (Sup. Ct. NY Co. 2012). Inwood Equities purchased the promissory note and mortgage to CPC and was substituted as plaintiff as well as continued as a defendant pursuant to a stipulated order dated June 13, 2013. C.P.L.R. § 1018. A foreclosure sale proceeded, eliminating Inwood Equities' subordinate mortgage and security interest in the property. Nevertheless, Inwood Equities' claims against Wadsworth Condos, Carnegie Holdings, Eli Bobker, and Ben Bobker (collectively the Wadsworth defendants) under the parties' loan agreement comprising the promissory note and personal guaranty remain. Inwood Equities now moves for summary judgment on Inwood Equities' cross-claims against the Wadsworth defendants for payment of the sums due under the loan agreement pursuant to their obligations under the note and guaranty. C.P.L.R. § 3212(b).
II.UNDISPUTED FACTS
Borrowers Wadsworth Condos and Carnegie Holdings, along with 43 Park Owners, executed a promissory note in favor of lender Inwood Equities for $2,500,000.00, with 13% per year interest on that principal. The interest was to be paid in installments on the first day of each month from September 1, 2005, to February 1, 2007, when the entire principal, including all accrued unpaid interest, became due. Under the note, the borrowers, including 43 Park Owners as well as the Wadsworth defendants, were in default upon their failure to pay any amount due, at which time they were liable to Inwood Equities, upon its demand, for a default interest of 24% per year or the maximum amount allowable by law. The borrowers were also liable for collection expenses incurred by Inwood Equities, including reasonable attorney's fees.
III. THE PARTIES' CLAIMS
Inwood Equities claims the Wadsworth defendants defaulted on their obligation to repay the loan, entitling Inwood Equities to the principal, interest, and expenses owed by Wadsworth Condos and Carnegie Holdings under the promissory note and owed by Eli Bobker and Ben Bobker under the guaranty. Alternatively to summary judgment on these claims, C.P.L.R. § 3212(b), Inwood Equities seeks dismissal of the Wadsworth defendants' affirmative defenses in their answer to Inwood Equities' cross-claims. C.P.L.R. § 3211(b).
Having discontinued their first, second, and eleventh affirmative defenses against Inwood Equities' cross-claims, the Wadsworth defendants claim Inwood Equities' unclean hands as a third defense and that Inwood Equities is equitably estopped from recovering for the failure to repay Inwood Equities' loan as a fourth defense. The Wadsworth defendants concede that their fifth, seventh through tenth, and twelfth defenses each duplicate the fourth defense, by pleading various reasons why Inwood Equities is equitably estopped, as follows. Inwood Equities' conduct diminished the Wadsworth defendants' ownership interest in the property, alleged as the fifth defense, and, in causing the Wadsworth defendants damage, entitles them to an offset, alleged as the tenth defense. Since Inwood Equities interfered with the Wadsworth defendants' performance of their obligations under the loan agreement, alleged as the seventh defense, and engaged in fraud, coercion, and duress, alleged as the twelfth defense, and Inwood Equities' own conduct caused its damages, alleged as the eighth defense, Inwood Equities is in pari delicto, alleged as the ninth defense.
The sixth defense alleges that the personal guaranty is deficient and therefore unenforceable. Upon the Wadsworth defendants' discontinuance of three defenses and concession that six more duplicate the fourth defense, the court grants Inwood Equities' motion to dismiss all affirmative defenses to its cross-claims, except the third, fourth, and sixth affirmative defenses of unclean hands, equitable estoppel, and unenforceability of the guaranty. C.P.L.R. § 3211(b); Sotomayor v. Princeton Ski Outlet Corp., 199 AD2d 197, 197 (1st Dep't 1993); Weichert v. O'Neill, 245 AD2d 1121, 1122 (4th Dep't 1997). The court addresses plaintiff's motion to dismiss these three remaining affirmative defenses below. IV.SUMMARY JUDGMENT
A.Inwood Equities' Prima Facie Showing
Inwood Equities establishes a prima facie entitlement to recover Inwood Equities' loan by presenting the subordinate mortgage on 1 Wadsworth Terrace given by Wadsworth Condos and Carnegie Holdings to Inwood Equities, with the underlying promissory note secured by the mortgage, and the guaranty by Eli Bobker and Ben Bobker, all authenticated on personal knowledge. Aff. of Perry Finkelman ¶¶ 5, 23, Exs. 1B, 1F (Oct. 24, 2013). Inwood Equities also presents evidence of the Wadsworth defendants' default in the obligations under each agreement. Id. ¶¶ 26-30; 71 Clinton St. Apts. LLC v. 71 Clinton Inc., 114 AD3d 583, 584-85 (1st Dep't 2014); 1855 E. Tremont Corp. v. Collado Holdings, LLC, 102 AD3d 567, 567-68 (1st Dep't 2013); Red Tulip, LLC v. Neiva, 44 AD3d 204, 209 (1st Dep't 2007). The Wadsworth defendants raise no objection to any of this evidence.B.The Wadsworth Defendants' Rebuttal
In opposition, the Wadsworth defendants rely on their third and fourth affirmative defenses of unclean hands and equitable estoppel, claiming Inwood Equities' own acts and omissions, through its president and owners Finkelman and Engel, who were also 43 Park Owners' managers and owners, impeded the property's development and the Wadsworth defendants' participation in that enterprise. The Wadsworth defendants claim Inwood Equities' obstructive conduct, through Finkelman and Engel, in turn impeded the ability to pay the note, barring its recovery for the nonpayment. See, e.g., Bank of Smithtown v. 264 West 124 LLC, 105 AD3d 468, 469 (1st Dep't 2013); River Bank Am. v. Daniel Equities Corp., 213 AD2d 929, 930 (3d Dep't 1995). V. THE AFFIRMATIVE DEFENSE OF UNCLEAN HANDS
A. The Wadsworth Defendants' Current Evidence
To support Inwood Equities' unclean hands, the Wadsworth defendants allege that Finkelman and Engel, in response to a Stop Work Order for demolition of a fence without a permit, dissipated funds and time by unnecessarily suing the New York City Department of Transportation, disputing its ownership of a wall and claiming the wall barred access to the fence. Simply obtaining the necessary permit instead would have allowed work to resume. Even were these allegations regarding the lack of necessity for plaintiff's lawsuit and its noncompliance with a requirement for a permit substantiated, Bank of Smithtown v. 264 West 124 LLC, 105 AD3d at 469; New York Community Bank v. Parade Place, LLC, 96 AD3d 542, 543 (1st Dep't 2012), they do not indicate that either the lawsuit or the noncompliance with the permit requirement was unconscionable or immoral, an essential element of an unclean hands defense. Levkoff v. Soho Grand-W. Broadway, Inc., 115 AD3d 536, 537 (1st Dep't 2014); Bank of Smithtown v. 264 West 124 LLC, 105 AD3d at 469; Citibank, N.A. v. American Banana Co., Inc., 50 AD3d 593, 594 (1st Dep't 2008); Willett v. Lincolnshire Mgt., 302 AD2d 271, 271 (1st Dep't 2003).
While the Wadsworth defendants support the lack of necessity for the lawsuit with hearsay from a New York City Department of Buildings (DOB) inspector that DOB would have lifted the Stop Work Order, had the builder Finkelman applied for a routine permit, Aff. of Eli Bobker ¶ 13 (Nov. 22, 2013), this fact still does not indicate the requisite unconscionable conduct or immorality in prosecuting the lawsuit. Moreover, even were an allegation based on hearsay enough to withstand dismissal of the defense, 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 AD3d 541, 542 (1st Dep't 2011); Santilli v. Allstate Ins. Co., 19 AD3d 1031, 1032 (4th Dep't 2005); Warwick v. Cruz, 270 AD2d 255, 255 (2d Dep't 2000), this inadmissible evidence does not rebut plaintiff's entitlement to summary judgment. Sperry Assoc. Fed. Credit Union v. Alexander, 116 AD3d 759, 759-60 (2d Dep't 2014). See McGinley v. Mystic W. Realty Corp., 117 AD3d 504, 505 (1st Dep't 2014); Acevedo v. Williams Scotsman, Inc., 116 AD3d 416, 417 (1st Dep't 2014); Mercado v. Ovalle, 110 AD3d 539, 539 (1st Dep't 2013).
Nevertheless, Eli Bobker does attest on personal knowledge specifically that the Wadsworth defendants relied on express promises by Finkelman and Engel that they would meet the budget allocated and the deadline set for completing the development project and that the payments of the note to Inwood Equities were structured within that budget and along that timeframe. Bobker Aff. ¶ 8. Finkelman in the Management Agreement, which Eli Bobker authenticates, personally guaranteed that the construction costs would not exceed $10,886,919.00. Id. Ex. A, at 5, Management Agreement § 2.2.
The Wadsworth defendants also relied on the personal guaranty of the promissory note by Finkelman and Engel themselves. Ostensibly, that obligation would give Finkelman and Engel their own interest in preventing a default in payment of the note. According to Eli Bobker, however, Finkelman and Engel aligned themselves with the promisee Inwood Equities, their corporation, against the co-promisors of 43 Park Owners, their LLC, and against their co-guarantors, likely realizing that no one would hold 43 Park Owners, their LLC, to its promise or its owners, Finkelman and Engel to their guaranty. They might ignore those obligations and let their corporation foist those obligations on the Bobkers' two LLCs and the Bobkers. This result runs contrary to the Management Agreement and the Tenants-in-Common Agreement, also authenticated by Eli Bobker, both of which manifest the contracting parties' intent that all parties contribute to the undertaking, whether by their property interests, funds, efforts, or expertise, and then share in the undertaking's profits or losses. Id. Ex. A. See Commander Terms. Holdings v. Poznanski, 84 AD3d 1005, 1009 (2d Dep't 2011).
Eli Bobker further attests that Finkelman and Engel unilaterally and without the Wadsworth defendants' consent as required by the Management Agreement, Bobker Aff. Ex. A, at 7-8, Management Agreement § 2.6(ii) and (iv), changed the purpose and scope of the property development from a condominium to a rental building. Id. ¶ 10. See Birnbaum v. Birnbaum, 73 NY2d 461, 466-67 (1989); Blue Chip Emerald v. Allied Partners, 299 AD2d 278, 279-80 (1st Dep't 2002); A.G. Homes, LLC v. Gerstein, 52 AD3d 546, 548 (2d Dep't 2008); River Bank Am. v. Daniel Equities Corp., 213 AD2d at 929-30. This unilateral change caused the default in payment of the note for a combination of related reasons, none of which Inwood Equities controverts with evidentiary facts. First, the change rendered the project financially unfeasible. The change delayed the project's completion beyond the original completion time on which the Wadsworth defendants had relied in the structuring of repayments to Inwood Equities for its loan. This delay and financial unfeasibility prevented the realization of income from the project in time to pay the note and destroyed the Wadsworth defendants' interests in the property. Id. ¶¶ 9, 10, 15, 18; Genger v. Genger, 121 AD3d 270, 278 (1st Dep't 2014); M & R Ginsburg, LLC v. Orange Canyon Dev. Co., LLC, 84 AD3d 1470, 1472 (3d Dep't 2011). See Birnbaum v. Birnbaum, 73 NY2d at 465; Cherokee Owners Corp. v. DNA Contr., LLC, 116 AD3d 517, 518 (1st Dep't 2014); McEnerney v. Mid-West Conveyor, Inc., 224 AD2d 223, 224 (1st Dep't 1996).
Eli Bobker attests that Inwood Equities' president and owners, on whom the Wadsworth defendants relied for their expertise in financial as well as construction management, also caused the development project's financial ruin through even more dishonest means than the unilateral changes in its purpose, scope, and schedule. Engel co-mingled the TIC's funds with his own funds and used the TIC's funds to pay his and Finkelman's personal expenses and Inwood Equities' expenses unrelated to the TIC and to support his and Finkelman's unrelated real estate projects, concealing the co-mingling and diversion of funds in Engel's monthly reports to the other TIC members. Bobker Aff. ¶¶ 16-18.
While much of these allegations regarding financial self-dealing are hearsay or speculation, not all are inadmissible. Eli Bobker bases the alleged use of TIC funds for personal expenses on his "review of the financial records of the Project," without the presentation of these records, by the Wadsworth defendants, or by plaintiff. Id. ¶ 16. His recitation of the records' contents "is not an acceptable substitute" for the records themselves, People v. Joseph, 86 NY2d 565, 570 (1995), particularly when he does not indicate they are currently inaccessible. Fiallos v. New York Univ. Hosp., 85 AD3d 678, 678 (1st Dep't 2011); Mastroddi v. WDG Dutchess Assoc. Ltd. Partnership, 52 AD3d 341, 342 (1st Dep't 2008); Lapin v. Atlantic Realty Apts. Co., LLC, 48 AD3d 337, 338 (1st Dep't 2008); Chubb Natl. Ins. Co. v. Platinum Customcraft Corp., 38 AD3d 244, 245 (1st Dep't 2007). See Bobker Aff. Ex. A, at 6, Management Agreement § 2.3. His accusation that, after Finkelman switched to a new general contractor for the TIC's project, Engel diverted TIC funds to that contractor for his and Finkelman's unrelated real estate projects is admittedly unsubstantiated speculation. Id. ¶ 17 & n.2. See Gomez v. J.C. Penney Corp., Inc., 113 AD3d 571, 572 (1st Dep't 2014); Beloff v. Gerges, 80 AD3d 460, 460-61 (1st Dep't 2011); Caraballo v. Kingsbridge Apt. Corp., 59 AD3d 270, 270 (1st Dep't 2009); Commander Terms. Holdings v. Poznanski, 84 AD3d at 1009.
Nevertheless, Eli Bobker's attestation that Engel both co-mingled the TIC's funds with his own funds and used the TIC's funds to pay Inwood Equities' expenses unrelated to the TIC is not, on its face, inadmissible hearsay or speculation. Eli Bobker specifies that "Engel paid Inwood's bills for its own attorneys, accountants, City taxes, licenses, and overhead from TIC funds," Bobker Aff. ¶ 17, a charge that Inwood Equities again does not controvert. See Birnbaum v. Birnbaum, 73 NY2d at 466-67; Commander Terms. Holdings v. Poznanski, 84 AD3d at 1008; 192 Sheridan Corp. v. O'Brien, 252 AD2d 934, 936 (3d Dep't 1998).
B. The Wadsworth Defendants' Prior Evidence
Inwood Equities points to the court's prior decision granting CPC summary judgment, which found that, in the record then before the court, the Wadsworth defendants presented no evidence that CPC colluded with 43 Park Owners, Finkelman, or Engel or otherwise wrongfully caused the mortgagors' default in repayment of CPC's loan. Community Preserv. Corp. v. Wadsworth Condos LLC, 37 Misc 3d 1219, 2012 WL 5500355, at *2. The Wadsworth defendants showed only that Finkelman and Engel communicated with CPC regarding the financing of the project, undertook managerial responsibilities for the project, and worked with CPC in fulfilling those managerial responsibilities. Id. (citing Aff. of Eli Bobker ¶¶ 4, 6 (Mar. 11, 2010)). The Wadsworth defendants presented no evidence that they were harmed by CPC's actions or by Finkelman and Engel communicating with CPC. Community Preserv. Corp. v. Wadsworth Condos LLC, 37 Misc 3d 1219, 2012 WL 5500355, at *2.
Nor did the Wadsworth defendants show, then, that CPC's unauthorized changes to the development plan caused the default in repayment of CPC's loan. Id. Now, however, Eli Bobker attests to that causal connection between Inwood Equities' conduct and the default in repayment of its loan and its implication, through its owners and president, in the scheme that led to the development project's financial ruin. His considerably more detailed account of the downfall is more and different than his prior conclusory allegations, yet not contradictory to them.
C. Conclusion
Accepted as true, Eli Bobker's allegations raise material factual issues regarding Inwood Equities' unclean hands, through its owners' unilateral conduct, contrary to their express representations, assurances, and promises, including their written Management Agreement and guaranty, that thwarted the ability to meet the obligations to repay the loan. Genger v. Genger, 121 AD3d at 278; Cherokee Owners Corp. v. DNA Contr., LLC, 116 AD3d at 518; M & R Ginsburg, LLC v. Orange Canyon Dev. Co., LLC, 84 AD3d at 1472; 192 Sheridan Corp. v. O'Brien, 252 AD2d at 936. See Levkoff v. Soho Grand-W. Broadway, Inc., 115 AD3d at 537; Bank of Smithtown v. 264 West 124 LLC, 105 AD3d at 469; Citibank, N.A. v. American Banana Co., Inc., 50 AD3d at 594. Eli Bobker describes this conduct as a deliberate scheme to delay the development project and cause it to exceed its budget, with the knowledge that the delay and cost overruns in turn would cause the mortgagor Wadsworth defendants to default in paying the promissory note to Inwood Equities.
Eli Bobker also describes the diversion of project funds for Inwood Equities' sole profit and not for the TIC's benefit as provided in the Tenants-in-Common Agreement, placing the interests of Inwood Equities, its owners and president, and their LLC, 43 Park Owners, in conflict with the interests of their co-tenants in common, co-promisors, and co-guarantors. Bobker Aff. Ex. A, at 1, Tenants-in-Common Agreement ¶ 4; Birnbaum v. Birnbaum, 73 NY2d at 465. See Birnbaum v. Birnbaum, 73 NY2d at 466-67; Reiff v. Shifrel, 268 AD2d 514, 515 (2d Dep't 2000); 192 Sheridan Corp. v. O'Brien, 252 AD2d at 936. While even the admissible allegations of self-dealing are poorly substantiated, when combined with the evidence of other actions by Finkelman and Engel contrary to the project's objectives, implicating their corporation Inwood Equities, the conduct amounts to the requisite dishonesty, wrongdoing, and unconscionability to bar Inwood Equities' recovery for the default. Genger v. Genger, 121 AD3d at 278; M & R Ginsburg, LLC v. Orange Canyon Dev. Co., LLC, 84 AD3d at 1471-72; Reiff v. Shifrel, 268 AD2d 514, 515 (2d Dep't 2000); 192 Sheridan Corp. v. O'Brien, 252 AD2d at 936. See Citibank, N.A. v. American Banana Co., Inc., 50 AD3d at 594. VI.THE AFFIRMATIVE DEFENSE OF EQUITABLE ESTOPPEL
The Wadsworth defendants also allege that they relied on the expressed expertise of Finkelman and Engel in construction and financial management, as well as their personal assurances and promises, oral and written, and their compliance with the terms of the parties' Tenants-in-Common and Management Agreements. Bobker Aff. ¶¶ 7-8. This reliance proved detrimental when, according to the Wadsworth defendants, Finkelman and Engel failed to use any such expertise toward the project's objectives and to carry out their promises, but instead breached the Tenants-in-Common and Management Agreements and sabotaged the project, losing its projected income to pay the note. Even if these allegations do not amount to the requisite unconscionability or immorality to support Inwood Equities' unclean hands, the allegations raise issues of fact that, if true, support the Wadsworth defendants' defense of equitable estoppel. Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., L.P., 7 NY3d 96, 106-107 (2006); 757 3rd Ave. Assoc., LLC v. Patel, 117 AD3d 451, 453-54 (1st Dep't 2014); Siger v. Rich, 308 AD2d 235, 243 (1st Dep't 2003); European Am. Bank v. Mr. Wemmick, Ltd., 160 AD2d 905, 906-907 (2d Dep't 1990).
Again, these allegations are more and different than, but not contradictory to, Eli Bobker's prior conclusory allegations in the record before the court when it granted CPC summary judgment. There, no evidence showed that the Wadsworth defendants relied on CPC's promise or actions to their detriment. Community Preserv. Corp. v. Wadsworth Condos LLC, 37 Misc 3d 1219, 2012 WL 5500355, at *3. See Bayerische Landesbank v. 45 John St. LLC, 102 AD3d 587, 588 (1st Dep't 2013); Provident Loan Socy. of NY v. 190 E. 72nd St. Corp., 78 AD3d 501, 503 (1st Dep't 2010); Siger v. Rich, 308 AD2d at 242. Eli Bobker attested only that he and Ben Bobker relied on an inaccurate engineering report, prepared by an engineer whom CPC retained, but not that the inaccurate report caused the default in repayment of CPC's loan. Community Preserv. Corp. v. Wadsworth Condos LLC, 37 Misc 3d 1219, 2012 WL 5500355, at *3 (citing Aff. of Eli Bobker ¶ 8 (Mar. 11, 2010)). VII. THE AFFIRMATIVE DEFENSE THAT THE GUARANTY IS INVALID
OR UNENFORCEABLE
In contrast to the Wadsworth defendants' support for their third and fourth affirmative defenses, the Wadsworth defendants point to no terms in the Bobkers' guaranty or surrounding facts that demonstrate its invalidity or unenforceability, to support the sixth affirmative defense. The Bobkers do not claim any fraudulent inducement in their execution of the guaranty, General Bank v. Mark II Imports, Inc., 293 AD2d 328, 328 (1st Dep't 2002); Bank Leumi Trust Co. of NY v. D'Evori Intern., Inc., 163 AD2d 26, 33-34 (1st Dep't 1990); deficiency or illegality in its terms, AQ Asset Mgt., LLC v. Levine, 119 AD3d 457, 461 (1st Dep't 2014); see 64th Assoc., L.L.C. v. Manhattan Eye, Ear & Throat Hosp., 2 NY3d 586, 589-90 (2004); City of New York v. 17 Vista Assocs., 84 NY2d 299, 306 (1994); Szerdahelyi v. Harris, 67 NY2d 42, 48 (1986); Surgical Design Corp. v. Correa, 290 AD2d 435, 436 (2d Dep't 2002); or circumstances terminating the guarantors' obligations. Midland Steel Warehouse Corp. v. Godinger Silver Art, 276 AD2d 341, 343-44 (1st Dep't 2000). See 22th St. Assocs., LLC v. Lehrer, 4 AD3d 165, 167-68 (1st Dep't 2004). Upon the Wadsworth defendants' failure present any evidentiary facts or legal theory supporting such a defense or to controvert plaintiff's prima facie showing of a valid guaranty, 71 Clinton St. Apts. LLC v. 71 Clinton Inc., 114 AD3d at 584; 1855 E. Tremont Corp. v. Collado Holdings, LLC, 102 AD3d at 568, the court dismisses the sixth affirmative defense. C.P.L.R. § 3211(b). VIII. DISPOSITION
For the reasons explained above, the court grants the motion by cross-claimant defendant and now plaintiff Inwood Equities Group, Inc., to dismiss the fifth through tenth and the twelfth affirmative defenses by defendants Wadsworth Condos, LLC, Carnegie Holdings, LLC, Eli Bobker, and Ben Bobker to Inwood Equities' cross-claims. C.P.L.R. § 3211(b). The court discontinues these defendants' first, second, and eleventh affirmative defenses to the cross-claims upon the parties' consent. C.P.L.R. §§ 3211(b), 3217(b). The court denies Inwood Equities' motion to dismiss these defendants' third and fourth affirmative defenses to its cross-claims and its motion for summary judgment on these cross-claims. C.P.L.R. §§ 3211(b), 3212(b).
DATED: September 2, 2014
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LUCY BILLINGS, J.S.C.