Opinion
No. 4430/14.
04-08-2015
WESTBURY PROPERTIES, a co-partnership, and South Shore Farmers' Market Realty a co-partnership, Plaintiffs, v. PRODUCE DISTRIBUTORS, INC. and Maureen O'connell, as the Nassau County Clerk, Defendants.
Martin Katzman, Esq. by: Martin Katzman, Esq., Garden City, NY, Attorney for Plaintiff. Klauber Law, LLC by: Richard H. Klauber, Esq., New York, NY, Attorneys for Defendant.
Martin Katzman, Esq. by: Martin Katzman, Esq., Garden City, NY, Attorney for Plaintiff.
Klauber Law, LLC by: Richard H. Klauber, Esq., New York, NY, Attorneys for Defendant.
Opinion
DANIEL PALMIERI, J.
Upon plaintiffs' counsel's letter, dated and affirmed April 1, 2015, referring to a ministerial error in the Court's order deciding plaintiffs' motion, which error was in describing recordation information of certain real property that is a subject of the action, the Court hereby recalls its Short Form Order dated March 30, 2015 and substitutes therefor the following to correct said error:
The following papers were read on this motion:
| Notice of Motion, dated 2–6–15 | 1 |
|---|---|
| Affirmation in Opposition, dated 3–12–15 | 2 |
| Reply Affirmation, dated 3–26–15 | 3 |
Plaintiffs' motion for summary judgment pursuant to CPLR § 3212 is granted and pursuant to RPAPL § 1501.4, the Nassau County Clerk is Ordered and Directed to cancel and discharge of record the Mortgage hereinafter defined. To the extent that the counterclaims seek to foreclose or enforce the mortgage they are dismissed. The Court makes no determination as to the debt which is alleged to be secured by the Mortgage and Extension.
Plaintiff Westbury Properties, a partnership obtained title to premises known as 522 Old Country Road, Westbury, N.Y. (Westbury Property) by deed from Prisco dated November 22, 1980. On the same day Prisco and others conveyed to plaintiff South Shore Farmer's Market Realty property known as 3559 Long Beach Road, Oceanside, N.Y. (Oceanside Property).
On April 15, 1992, in order to secure an indebtedness of $900,000, the owners of the Westbury Property and the Oceanside Property gave a mortgage on said properties to defendant Produce Distributors, Inc. (Defendant) which mortgage was recorded in the Office of the Clerk of Nassau County in Book 14236 Page 735 of Mortgages (the Mortgage). The Mortgage was given as security for an indebtedness of two other companies owed to Defendant and refer to a promissory note and a loan agreement. The loan was for a period of five years with the last payment due April 1, 1997. Monthly payments of principal and interest totaling $33,000. each were to be paid commencing May 1, 1992 and ending April 1, 1997.
On May 19, 1997, the parties to the Mortgage agreed that there was due on the loan $1,751,716. payable in monthly installments as set forth in said note without interest commencing on May 1, 2002 (the Extension). The Extension was recorded in the office of the Clerk of Nassau County in Liber 17999 of mortgages, page 311.
Neither party has provided a copy of the note nor other evidence of debt and neither has provided a reason for the failure to do so.
Both sides agree that there has never been a payment under the note, the Mortgage or the Extension.
Plaintiffs' motion is supported by an affirmation of its attorney and an affidavit from one Jacqueline Werner, a general partner of each of the plaintiffs' and a complaint verified by her. See CPLR § 105(u), verified pleading may be used as an affidavit.
In opposition, defendant Produce has relied solely on affirmation of its attorney and he relies solely on the documents submitted by plaintiff.
It is well settled that an attorney's affirmation that is not based on personal knowledge or supported by documentary evidence is of no probative value. Warrington v. Ryder Truck Rental, Inc., 35 AD3d 455 (2d Dept.2006) ; Sampson v. Delaney, 34 AD3d 349 (1st Dept.2006) ; cf Davey v. Dolan, 46 AD3d 854 (2d Dept.2007). Here, defendants' attorney does not profess to possess personal knowledge of any facts asserted and has not employed his affirmation as a vehicle to refer to other competent evidence.
No explanation is provided as to why there is no affidavit by any person with knowledge of the events and no production of the Note described in both the Mortgage and the Extension. According to the Extension there is only one note, originally for $900,000 upon which there was due $1,751,716 payable in monthly installments, as set forth in the Note without interest commencing on May 1, 2001. Thus, as plaintiff contends the Note became due in 53.08 months from May 1, 2002, which is November 1, 2007. Plaintiff computes the due date as March 1, 2007 however the difference does not change the result here.
The Court adopts plaintiff's method for computing the due date of the loan because it is capable of being ascertained from the documents submitted without any reference to any extrinsic evidence. See, Sun Convenient Inc. v. Sarsasamin Corp., 123 Ad3d 432 (2d Dept.2014).
It is well settled that summary judgment is a drastic remedy which should not be granted where there is any doubt about the existence of a triable issue of fact. Bhatti v. Roche, 140 A.D.2d 660 (2d Dept.1988). It is nevertheless an appropriate tool to weed out meritless claims. Lewis v. Desmond, 187 A.D.2d 797 (3d Dept.1992) ; Gray v. Bankers Trust Co. of Albany, N.A., 82 A.D.2d 168 (3d Dept.1981). Even where there are some issues in dispute in the case which have not been resolved, the existence of such issues will not defeat a summary judgment motion if, even when the facts are construed in the nonmoving party's favor, the moving party would still be entitled to relief. Brooks v. Blue Cross of Northeastern New York, Inc., 190 A.D.2d 894 (3d Dept.1993).
Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the court, as a matter of law, in directing judgment in its favor. CPLR 3212(b). Absent this initial showing, the court should deny the motion, without passing on the sufficiency of the opposing papers. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985).
If such a prima facie case is made, the burden shifts to the nonmoving party. To defeat the motion for summary judgment the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial. CPLR 3212(b) ; see also GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 N.Y.2d 965 (1985) ; Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). The nonmoving party must lay bare all of the facts at its disposal regarding the issues raised in the motion. Mgrditchian v. Donato, 141 A.D.2d 513 (2d Dept.1988). Conclusory allegations are insufficient (Zuckerman v. City of New York, supra ), and the defending party must do more than merely parrot the language of the pleadings. There must be evidentiary proof in support of the allegations. Fleet Credit Corp. v. Harvey Hutter & Co., Inc., 207 A.D.2d 380 (2d Dept.1994) ; Toth v. Carver Street Associates, 191 A.D.2d 631 (2d Dept.1993).
On such a motion the court must draw all reasonable inferences in favor of the nonmoving party. Nicklas v. Tedlen Realty Corp., 305 A.D.2d 385 (2d Dept.2003) ; Rizzo v. Lincoln Diner Corp., 215 A.D.2d 546 (2d Dept.1995). The role of the court in deciding a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but simply to determine whether such issues of fact requiring a trial exist. Dyckman v. Barrett, 187 A.D.2d 553 (2d Dept.1992) ; Barr v. County of Albany, 50 N.Y.2d 247, 254 (1980) ; James v. Albank, 307 A.D.2d 1024 (2d Dept.2003) ; Heller v. Hicks Nurseries, Inc., 198 A.D.2d 330 (2d Dept.1993). The Court need not, however, ignore the fact that an allegation is patently false or that an issue sought to be raised is merely feigned. Sexstone v. Amato, 8 AD3d 1116 (4th Dept.2004). The Court may also search the record and grant summary judgment in favor of a nonmoving party with respect to a cause of action or issue that is the subject of a motion for summary judgment without the necessity of a cross-motion. CPLR 3212(b) ; Katz v. Waitkins, 306 A.D.2d 442 (2d Dept.2003).
RPAPL § 1501.4 provides in substance and as relevant here that when the statute of limitations to foreclose a mortgage has expired an interested person may maintain an action to cancel and discharge the encumbrance of record. It is immaterial whether the debt which is secured by the mortgage has been paid.
The statute of limitations on a mortgage foreclosure action begins to run from the due date for each unpaid installment or from the time the mortgagee is entitled to demand full payment or from the date from the mortgage debt is accelerated. A person seeking to avail under this section makes a prima facie case by demonstrating that the mortgage holder failed to bring an action to foreclose within the applicable six year statute of limitations. Plaia v. Safonte, 45 AD3d 747 (2d Dept.2007), Koeppel v. Carlanda Corp., 21 AD3d 884 (2d Dept.2005) ; Notarnicola v. Lafayette Farms, Inc., 288 A.D.2d 198 (2d Dept.2001) ; CPLR § 213(4). Plaintiff has demonstrated that the statute of limitations to commence an action for foreclosure has expired.
Here plaintiff has made a prima facie showing of entitlement to relief and Defendant has failed to raise an issue of fact as to why such relief should not be granted. JBR Constr. Corp. v. Staples, 71 AD3d 952 (2d Dept.2010).
The Court must also reject the alleged lack of discovery in the case as a reason to deny the motion. A motion for summary judgment may be opposed with the claim that facts essential to justify opposition may exist but cannot then be stated by the motion opponent. CPLR 3212(f). However, the opposing party must make an evidentiary showing that such material facts are within the exclusive knowledge and possession of the moving party, and be able to support that claim with something more than speculation or conjecture. Firth v. State, 287 A.D.2d 771 (3d Dept.2001) ; Urcan v. Cocarelli, 234 A.D.2d 537 (2d Dept.1996). Here the Defendant has not shown that facts essential to oppose the motion are in the plaintiff's exclusive knowledge and possession. Wright v. Shapiro, 16 AD3d 1042 (4th Dept.2005) ; see also, Drepault v. Allstate Ins. Co., 299 A.D.2d 391 (2d Dept.2002). Further, defendant has not submitted evidence to support the contention that discovery will alter the result, that is, that discovery may yield facts that would provide a bona fide defense to the motion. As noted above the answer and counterclaim are not verified and the motion is only opposed by an attorney. No explanation has been offered as to why no one with knowledge of the events has proffered any opposition.
Based on the foregoing the motion for summary judgment is granted and defendant Nassau County Clerk is Ordered and Directed to cancel of record the Mortgage and Extension as such terms are described above.
Any requests by Defendant for affirmative relief are denied because Defendant did not make a cross motion seeking such relief. CPLR § 2215 ; New York State Div. of Human Rights v. Oceanside Cove II Apt. Corp., 39 AD3d 608 (2d Dept 2007) ; see generally Bucceri v. Frazer, 297 A.D.2d 304 (2d Dept 2002). To the extent the Defendant asks the Court to pass on requests not made by formal notice in the exercise of its discretion, the Court declines to do so. Fried v. Jacob Holding, Inc., 110 AD3d 56 (2d Dept.2013), Blake v. U.S., 109 D3d 504 (2d Dept.)
As noted above, the Court makes no determination as to the counterclaim and the action on the debt thereon shall continue.
All parties except the Defendant Clerk shall appear at a preliminary conference at the Supreme Courthouse, 100 Supreme Court Drive, Mineola, NY, on May 27, 2015, at 9:30 a.m., lower level. No adjournments of this conference will be permitted absent the permission of or Order of this Court. All parties are forewarned that failure to attend the conference may result in Judgment by Default, the dismissal of pleadings (see 22 NYCRR 202.27 ) or monetary sanctions (22 NYCRR 130–2.1 et seq. ).
This shall constitute the Decision and Order of this Court.