B&H Fla. Notes LLC v. Ashkenazi

• Decision Date: 04 April 2017
• Docket Number: 2848,2847,850263/13
• Citation: 2017 NY Slip Op 02591
• Parties: B and H Florida Notes LLC, Plaintiff-Respondent, v. Alexander Ashkenazi, et al., Defendants, Amit Louzon, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

2017 NY Slip Op 02591

B and H Florida Notes LLC, Plaintiff-Respondent,
v.
Alexander Ashkenazi, et al., Defendants,
Amit Louzon, Defendant-Appellant.

850263/13
2848
2847

Appellate Division of the Supreme Court of the State of New York

Decided on April 4, 2017

Sweeny, J.P., Renwick, Kahn, Gesmer, JJ.

McLaughlin & Stern, LLP, Great Neck (John M. Brickman of counsel), for appellant.

Marc Scollar Law Office, Staten Island (Marc Scollar of counsel), for respondent.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered June 10, 2015, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment against defendant Amit Louzon, denied Louzon's cross motion for summary judgment dismissing the complaint against him, and denied Louzon's motion to amend his pleadings, unanimously modified, on the law, to the extent of denying plaintiff's motion for summary judgment, granting Louzon's motion to amend his answer to add the affirmative defense of lack of standing, and otherwise affirmed, without costs; and order, same court and Justice, entered July 31, 2015, which, to the extent appealed from as limited by the briefs, upon plaintiff's motion, appointed a referee to compute the sums due plaintiff under a note and New York mortgage, unanimously reversed, without costs, and the appointment vacated.

Pursuant to CPLR 1018, nonparty W89D5 LLC may continue to prosecute this appeal in Louzon's name, despite Louzon having transferred his interest in the premises to W89D5, which he solely owns, and which neither party has requested be substituted in this action (Central Fed. Sav. v 405 W. 45th St., 242 AD2d 512 [1st Dept 1997]; cf. HSBC Guyerzeller Bank AG v Chascona N.V., 66 AD3d 488, 489 [1st Dept 2009] [party was properly substituted as the foreclosure plaintiff]).

The motion court properly denied Louzon's cross motion for summary judgment. On a prior appeal, this Court unanimously held that Louzon purchased the premises subject to the New York mortgage (Grand Pac. Fin. Corp. v Ashkenazi, 108 AD3d 425 [1st Dept 2013], lv denied 22 NY3d 1015 [2013]). The Mutual Settlement Agreement and General Release in the Michigan foreclosure action did not contain or constitute a waiver of plaintiff's foreclosure rights under the New York mortgage. Additionally, RPAPL 1371 does not apply, since there has been no foreclosure sale under the New York mortgage (Hometown Bank of Hudson Val. v Colucci, 127 AD3d 702, 704 [2d Dept 2015]). RPAPL 1306 is also inapplicable. That statute is triggered by RPAPL...