Daniel Perla Associates, Lp v. 101 Kent Associates, Inc.

• Decision Date: 08 May 2007
• Docket Number: 2006-05784.
• Citation: 836 N.Y.S.2d 630,40 A.D.3d 677,2007 NY Slip Op 04064
• Parties: DANIEL PERLA ASSOCIATES, LP, Appellant, v. 101 KENT ASSOCIATES, INC., Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

40 A.D.3d 677

836 N.Y.S.2d 630

2007 NY Slip Op 04064

DANIEL PERLA ASSOCIATES, LP, Appellant, v. 101 KENT ASSOCIATES, INC., Respondent, et al., Defendants.

2006-05784.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided May 8, 2007.

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated May 11, 2006, which denied that branch of its motion which was for summary judgment on the complaint and, in effect, denied that branch of its motion which was to dismiss the affirmative defenses of the defendant 101 Kent Associates, Inc., and granted the cross motion of the defendant 101 Kent Associates, Inc., to consolidate the instant action with an action entitled MCC Dev. Corp. v Daniel Perla, pending in the Supreme Court, New York County, under index No. 101141/2006.

Ordered that the order is reversed, on the law, with costs, those branches of the plaintiff's motion which were for summary judgment on the complaint and to dismiss the affirmative defenses of the defendant 101 Kent Associates, Inc., are granted, and the cross motion of the defendant 101 Kent Associates, Inc., to consolidate the instant action with an action entitled MCC Dev. Corp. v Daniel Perla, pending in the Supreme Court, New York County, under index No. 101141/2006, is denied.

The Supreme Court improperly denied that branch of the plaintiff's motion which was for summary judgment on the complaint and, in effect, denied that branch of its motion which was to dismiss the affirmative defenses of the defendant 101 Kent Associates, Inc. (hereinafter Kent). The plaintiff established its prima facie entitlement to judgment as a matter of law by tendering the mortgage, the unpaid note, and evidence of Kent's default (see EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370 [2002]; Marine Midland Bank v Fillippo, 276 AD2d 601 [2000]).

In opposition, Kent's sole shareholder, Mark Nagawiecki, submitted an affidavit in which he averred that the plaintiff's limited partner, Daniel Perla, had agreed to an oral modification of the mortgage. According to Nagawiecki, that modification allegedly allowed the moneys owed by Kent under the note and mortgage to serve as an offset to balances of sums owed to MMM Construction Corp., of which Nagawiecki is the sole shareholder, for a construction project undertaken by Faldan Realty Co., another company for which Perla served as general partner. This...