Banco Popular North Am. v. Lieberman

• Decision Date: 13 July 2010
• Citation: 905 N.Y.S.2d 82,75 A.D.3d 460
• Parties: BANCO POPULAR NORTH AMERICA, Plaintiff-Respondent, v. Aharon LIEBERMAN, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

905 N.Y.S.2d 82

75 A.D.3d 460

BANCO POPULAR NORTH AMERICA, Plaintiff-Respondent,

v.Aharon LIEBERMAN, et al., Defendants-Appellants.

Supreme Court, Appellate Division, First Department, New York.

July 13, 2010.

Paul T. Gentile, New York, for appellants.

Rick, Steiner, Fell & Benowitz, LLP, New York (Garrett P. Simulcik, Jr. of counsel), for respondent.

ANDRIAS, J.P., CATTERSON, RENWICK, RICHTER, ROMÁN, JJ.

Order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered on or about November 10, 2008, which, in this action by plaintiff bank to recover a property tax payment it mistakenly made after assigning a mortgage, affirmed an order of Civil Court, New York County (Jose A. Padilla, Jr., J.), entered on or about January 31, 2007, granting plaintiff's motion for summary judgment in the principal amount of $18,630.99 against defendants, the mortgagor and its guarantors, and denying defendants' cross motionto dismiss the secondand third causes of action and for leave to amend their answer to assert certain counterclaims, unanimously modified, on the law, to deny plaintiff's motion for summary judgment against defendant guarantors and to grant the cross motion to the extent of dismissing the second and third causes of action and granting leave to amend the answer to assert the first, second, third, fourth, and fifth proposed counterclaims, which are severed and may continue as independent causes of action, and otherwise affirmed, without costs.

Plaintiff established its entitlement to recover from defendant High Tech, under the theory of unjust enrichment, the amount of property taxes it inadvertently paid on High Tech's mortgaged property ( see Roslyn Sav. Bank v. Jude Thaddeus Glen Cove Mar., 266 A.D.2d 198, 697 N.Y.S.2d 333 [1999]; Bank of N.Y. v. Asati, Inc., 184 A.D.2d 443, 585 N.Y.S.2d 411 [1992] ). Defendants' claim to a setoff based upon alleged improper banking practices by plaintiff is merely a "possible, unliquidated liability," and does not preclude plaintiff's immediate recovery of the property tax payment from High Tech ( Spodek v. Park Prop. Dev. Assoc., 263 A.D.2d 478, 478, 693 N.Y.S.2d 199 [1999], lv. denied 94 N.Y.2d 760, 706 N.Y.S.2d 81, 727 N.E.2d 578 [2000] ). Accordingly, plaintiff is entitled to summary judgment on its first cause of action against High Tech.

Although the guaranty executed by defendants Lieberman and Compositron was broad, it arose in the context of a loan facility and contemplated the guaranty of obligations incurred by High Tech as a "Borrower." Construing the guaranty strictly ( see White Rose Food v. Saleh, 99 N.Y.2d 589, 591, 758 N.Y.S.2d 253, 788 N.E.2d 602 [2003] ), plaintiff's unjust enrichment claim to recover monies it mistakenly conveyed on High Tech's behalf, outside of any loan agreement, is simply not the kind of liability the guarantors agreed to secure ( see Nassau Trust Co. v. LAC Indus., 83 A.D.2d 503, 441 N.Y.S.2d 5 [1981], lv. denied 55 N.Y.2d 604, 447 N.Y.S.2d 1027, 432 N.E.2d 143 [1981]; see also Giovanelli v. First Fed. Sav. & Loan Assn. of Phoenix, 120 Ariz. 577, 583, 587 P.2d 763, 769 [1978] ). Accordingly, plaintiff is not entitled to summary judgment against the guarantors and plaintiff's second cause of action must be dismissed.

Once plaintiff assigned the mortgage, it lacked standing to sue to recover the overpayment under the mortgage documents ( see Commonwealth Land Tit. Ins. Co. v. Lituchy, 161 A.D.2d 517, 518, 555 N.Y.S.2d 786 [1990] ). Because plaintiff's claim against High Tech sounds solely in unjust enrichment and is not asserted under the mortgage, and because, as noted, plaintiff cannot assert any claim under the guaranty, the attorneys' fees provisions of the mortgage and guaranty do not apply. Accordingly, the third cause of action, seeking attorneys' fees, must also be dismissed.

As to defendants' motion for leave to amend their answer, CPLR 3013 requires that "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." A defendant seeking to amend its answer to allege a counterclaim is not required to submit evidentiary proof to justify the amendment ( see Crespo v. Triad, Inc., 294 A.D.2d 145, 148, 742 N.Y.S.2d 25 [2002] ).

Defendants' first, second, fourth, and fifth proposed counterclaims, which are supported by an affidavit from defendants' certified public accountant basedupon his review of defendants' bank records, contain facts sufficient to give the court and plaintiff notice of various allegedly improper withdrawals and excess debits, late charges, and interest assessed by plaintiff against defendants and the material elements of their claims for breach of contract. At a minimum, they state a claim for a setoff ( see Burns v. Lopez, 256 N.Y. 123, 128, 175 N.E. 537 [1931]; Banco do Estado de Sao Paulo v....