Opinion
Index No. 600470/2020 Mot. Seq. 001-MD
03-06-2023
YAKTE PROPERTIES, LLC, Plaintiff, v. ASTHMA ZAHEER RATTOO, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR HARTFORD FUNDING, LTD., CLERK OF THE SUFFOLK COUNTY TRAFFIC & PARKING VIOLATIONS AGENCY, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, LVNV FUNDING, LLC, JOHN DOE (Those unknown tenants, occupants. persons or corporations or their heirs, distributes. executors, administrators, trustees, guardians, assignees, creditors or successors claiming an interest in the mortgaged premises.) Defendants.
GROSS POLOWY LLC Attorneys for Plaintiff. FIDELITY NATIONAL LAW GROUP Attorneys for Defendant, Asthma Zaheer Rattoo
Unpublished Opinion
MOTION DATE 11/19/2020 (001)
ADJ DATE 04/25/2022
GROSS POLOWY LLC Attorneys for Plaintiff.
FIDELITY NATIONAL LAW GROUP Attorneys for Defendant, Asthma Zaheer Rattoo
SHORT FORM ORDER
CHRISTOPHER MODELEWSKI JUSTICE
Upon the E-file document list numbered 31 to 44 and 48 to 57 read and considered on the application by defendant Asthma Zaheer Rattoo for an order pursuant to CPLR 3211 (a)(10) and 3211 (a)(7) dismissing the action as against defendant and pursuant to CPLR 213 (6) due to the expiration of the statute of limitations on the second cause of action; it is
ORDERED that the motion by defendant Asthma Zaheer Rattoo for an order pursuant to CPLR 3211 (a)(10) and 3211 (a)(7) dismissing the foreclosure action as against defendant and dismissing the second cause of action for reformation of the mortgage pursuant to CPLR 213 (6) due to the expiration of the statute of limitations, is denied for the reasons set forth herein.
This is an action to foreclose a mortgage on real property located in Suffolk County, New York. Plaintiff commenced this action by the filing of a summons and complaint on January' 8, 2020 and on February 28, 2020 the complaint was amended ("the complaint"). Issue was joined by defendant Asthma Zaheer Rattoo ("defendant"). This matter was released from the foreclosure settlement part on September 10, 2020. Defendant now moves to dismiss the complaint as against her and to dismiss the second cause of action for reformation of the mortgage on the ground that the statute of limitations has expired. As to the foreclosure cause of action, defendant alleges that the original borrower on the note and mortgage, who no longer holds any interest in the subject property, should be named as a defendant and plaintiff s failure to do so warrants dismissal of this action. Defendant further asserts that the complaint fails to state a cause of action. Plaintiff opposes the motion and defendant replies.
Inasmuch as the original borrower, Hajnalka K. Klein, ("borrower"), transferred all of her interest in the subject property to defendant by deed executed on August 18. 2017 and recorded with the Suffolk County Clerk on October 5, 2017 under Liber 12932 at page 676, borrower is not a necessary party defendant (see U.S. Bank N.A. v Gonzalez, 172 A.D.3d 1273, 101 N.Y.S.3d 363 [2d Dept 2019] citing RPAPL 1311). Defendant acquired the subject property prior to the commencement of this foreclosure action and thus took ownership subject to the plaintiffs mortgage interest in the subject property. For that reason defendant, not borrower, is a necessary party to this foreclosure action (RPAPL 1311).
In determining a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Matneja vZito, 163 A.D.3d 800, 801, 81 N.Y.S.3d 174 [2d Dept 2018]; see also Rosenblum v Island Custom Stairs, Inc., 130 A.D.3d 803, 803, 14 N.Y.S.3d 82 [2d Dept 2015]; Country Pointe at Dix Hills Home Owners Assn., Inc. v Beechwood Organization, 80 A.D.3d 643, 649, 915 N.Y.S.2d 117 [2d Dept 2011], quoting Schneider v Hand, 296 A.D.2d 454, 744 N.Y.S.2d 899 [2002]). The test of the sufficiency of a pleading is" 'whether it gives sufficient notice of the transaction, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments'" (Hampshire Prop, v BTA Bldg, and Developing, Inc., 122 A.D.3d 573, 573, 996 N.Y.S.2d 129 [2d Dept 2014], quoting Leon v Martinez, 84 N.Y.2d 83, 88, 638 N.E.2d 511,614 N.Y.S.2d 972 [1994]; see also (JPMorgan Chase v J.H. Electric of N.Y., Inc., 69 A.D.3d 802, 803, 893 N.Y.S.2d 237 [2d Dept 2010], quoting Moore v Johnson, 147 A.D.2d 621,621, 538 N.Y.S.2d 28 [1989]). Thus, the inquiry is whether the pleading states a cause of action, not whether the plaintiff has a cause of action (Sokol v Leader. 74 A.D.3d 1180, 904 N.Y.S.2d 153 [2d Dept 2010]). "Whether a plaintiff can ultimately establish [its] allegations is not part of the calculus in determining a motion to dismiss" (EBCI, Inc. v Goldman, Sachs &Co., 5 N.Y.3d 11,19, 799 N.Y.S.2d 170 [2005]). However, "conclusory averments of wrongdoing are insufficient to sustain a complaint unless supported by allegations of ultimate facts" (Muka v Greene County, 101 A.D.2d 965, 965, 477 N.Y.S.2d 444 [4th Dept 1984]; see also DiMauro v Metropolitan Suburban Bus Auth., 105 A.D.2d 236, 483 N.Y.S.2d 383 [2d Dept 1984]; Melito v Interboro Mut. Indem. Ins. Co., 73 A.D.2d 819, 423 N.Y.S.2d 742 [4th Dept 1979]; Greschler v Greschler, 71 A.D.2d 322, 422 N.Y.S.2d 718 [2d Dept 1979]).
Here, the complaint alleges there is a recorded mortgage against the subject property, that there is an unpaid note, and that there was a default under the terms of the mortgage following a failure to pay. As such, the complaint states a cause of action in foreclosure (see HSBC Bank USA, N.A. v Bhatti, 186 A.D.3d 817. 130 N.Y.S.3d 474[2d Dept 2020]; KeyBank N.A. v Barrett. 178 A.D.3d 800, 114 N.Y.S.3d 451 [2d Dept 2019]).
The statute of limitations on a claim to reform a recorded instrument based upon mistake is six years and applies to scrivener's errors (see Federal Deposit Ins. Corp, v Five Star Mgmt., Inc., 258 A.D.2d 15, 20, 692 N.Y.S.2d 69 [1st Dept 1999]). Notwithstanding, plaintiff would still be entitled to foreclose on the subject property to enforce its mortgage despite the scrivener's error, as equity would impress an equitable lien in plaintiffs favor upon proof that there was an express or implied agreement that there should be a lien on the subject property (id. at 21,692 N.Y.S.2d at 73; see also U.S. Bank N.A. v Alleyne, 187 A.D.3d 1236, 131 N.Y.S.3d 223 [2d Dept 2020]; see generally Caridi v Tanico, 188 A.D.3d 636, 135 N.Y.S.3d 121 [2d Dept 2020]; Bank of N.Y. Mellon v George. 186 A.D.3d 661, 127 N.Y.S.3d 310 [2d Dept 2020]; U.S. Bank Natl. Assn, v Losner, 145 A.D.3d 935, 937, 44 N.Y.S.3d 467 [2d Dept 2016]; LNV Corp, v Forbes, 122 A.D.3d 805, 996 N.Y.S.2d 696 [2d Dept 2014]). Thus, the Court invokes its equitable powers in denying this branch of defendant's application (see U.S. Bank N.A. v Alleyne, supra; Federal Deposit Ins. Corp, v Five Star Mgmt., Inc., supra).
Accordingly, the motion by defendant to dismiss the complaint is denied.
The foregoing constitutes the decision and Order of the Court.