Flushing Preferred Funding Corp. v. Patricola Realty Corp.

• Decision Date: 11 September 2012
• Docket Number: No. 1133–12.,1133–12.
• Citation: 2012 N.Y. Slip Op. 51751,36 Misc.3d 1240,964 N.Y.S.2d 58
• Parties: FLUSHING PREFERRED FUNDING CORP., Plaintiff, v. PATRICOLA REALTY CORP., New York State Department Of Taxation And Finance, Clare Taylor, Jennifer Taylor, Danielle Taylor, 72 Walt Whitman Road Associates, LLC, 560 Cleaners, Inc., Joseph Pennestri, Lefrench Cleaners, Inc., Seung Kyu Koh, “John Doe No. 1” to “John Doe No. XXX” inclusive, the last thirty names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in the complaint, Defendants.
• Court: New York Supreme Court

36 Misc.3d 1240
964 N.Y.S.2d 58
2012 N.Y. Slip Op. 51751

FLUSHING PREFERRED FUNDING CORP., Plaintiff,
v.
PATRICOLA REALTY CORP., New York State Department Of Taxation And Finance, Clare Taylor, Jennifer Taylor, Danielle Taylor, 72 Walt Whitman Road Associates, LLC, 560 Cleaners, Inc., Joseph Pennestri, Lefrench Cleaners, Inc., Seung Kyu Koh, “John Doe No. 1” to “John Doe No. XXX” inclusive, the last thirty names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in the complaint, Defendants.

No. 1133–12.

Supreme Court, Suffolk County, New York.

Sept. 11, 2012.

Jaspan Schlesinger, LLP Garden City, NY, for Plaintiff.

Alexander M. Fear, P.C. New Rochelle, NY, for Defendants, Patricola Realty & Taylors.

Michael L. McCarthy, P.C., Huntington, NY, for Defendants, 572 Walt Whitman Rd.

Alan Gitter, Esq., Hauppauge, NY, for Defendant, NYS Dept. of Taxation.

THOMAS F. WHELAN, J.

ORDERED that this motion (# 002) by the plaintiff for accelerated judgments against the defendants, the appointment of a referee to compute and other incidental relief is considered under CPLR 3212, 3215 and RPAPL 1321 and is granted; and it is further

ORDERED that the cross motion (# 003) by defendants, Patricola Realty Corp., Clare Taylor, Jennifer Taylor and Danielle Taylor, for an order granting them leave to serve an amended answer and compelling the plaintiff to disclose documents, is considered under CPLR 3025 and 3126 and is denied.

The plaintiff commenced this action to foreclose a December 19, 2006 mortgage given by defendant, Patricola Realty Corp. [hereinafter “Patricola” or “mortgagor”], to secure a promissory note of the same date in the amount of $1,450,000.00 executed by defendant, Clare Taylor [hereinafter “CTaylor” or “borrower”] in favor of Flushing Savings Bank, FSB. The December 19, 2006 note was further secured by the written unconditional guarantees of payment executed by defendants, Jennifer Taylor and Daniel Taylor [hereinafter “guarantors”]. The subject mortgage, in which the mortgagor, Patricola promised to pay the debt a provided in the note executed by defendant CTaylor, was recorded in the office of the County Clerk on January 8, 2007. The original lender/mortgagee, the parent company of the plaintiff, assigned the promissory note secured by the subject mortgage and such mortgage to the plaintiff by a written assignment bearing a corporate acknowledgment dated January 2, 2008. That assignment was recorded in the office of the Suffolk County Clerk on February 7, 2008.

The mortgaged premises consist of commercial property situated on Walt Whitman Road, Melville, New York which houses several rental units of commercial space. In its complaint, the plaintiff alleges that the mortgagor defendant defaulted in making the payment due on September 1, 2011 and such default has not been cured. The plaintiff thereafter elected to accelerate the mortgage debt, the principal amount of which was $1,371,504.21 as of the date of complaint. The plaintiff seeks recovery of such amount together with late fees, interest and reasonable counsel fees upon the public sale of the subject premises, and a deficiency of judgment, if there be any following such sale, against the obligor defendants, Ctaylor, Paticola, Jennifer Taylor and Danielle Taylor.

The plaintiff commenced this action to foreclose the lien of its mortgage in January of 2012 and secured the appointment of a receiver by order of this court dated January 31, 2012. Defendant, 572 Walt Whitman Road Associates, LLC, s/h/a/ 72 Walt Whitman Road Associates, LLC, an occupant of the premises, appeared herein by answer dated January 19, 2012. The obligor defendants appeared herein by an undated answer bearing a verification by the corporate defendant dated April 16, 2011. Therein, the obligor defendants assert nine affirmative defenses to the plaintiff's pleaded demands for relief.

By the instant motion, the plaintiff moves for an order: (1) amending the captions of this action to reflect the proper name of answering defendant, 572 Walt Whitman Associates, LLC, s/h/a 72 Walt Whitman Associates, LLC; 2) awarding summary judgment against the answering defendants; (2) fixing the defaults in answering of the non-answering defendants; (3) substituting one or more occupants found at the premises for unknowns named in the caption and deleting as party defendants the remaining unknown defendants; and (4) appointing a referee to compute amounts due under the subject mortgage.

The court is without receipt of opposition from answering defendant, 542 Walt Whitman Road Associates, LLC. However, the obligor defendants oppose the plaintiff's motion-in-chief by cross moving papers (# 003) in which they seek an order granting them leave to serve an amended answer and an order compelling the plaintiff to produce the documents demanded in a document demand notice dated April 16, 2012. For the reasons stated below, the cross motion is denied while the plaintiff's motion-in-chief is granted.

It is well settled law that a mortgagee establishes a prima facie case for foreclosure of a mortgage lien by presenting the subject mortgage, the unpaid note and due evidence of a default under the terms thereof ( seeCPLR 3212; RPAPL § 1321; Baron Assoc., LLC v. Garcia Group Enter., 96 AD3d 793, 946 N.Y.S.2d 611 [2d Dept 2012]; Archer Capital Fund, L.P. v. Eagle Realty, LLC, 95 AD3d 799, 942 N.Y.S.2d 902 [2d Dept 2012]; Washington Mut. Bank v. Valencia, 92 AD3d 774, 939 N.Y.S.2d 73 [2d Dept 2012]; Swedbank, AB v. Hale Ave. Borrower, LLC., 89 AD3d 922, 932 N.Y.S.2d 540 [2d Dept 2011]; Capstone Bus. Credit, LLC v. Imperia Family Realty, LLC, 70 AD3d 882, 895 N.Y.S.2d 199 [2d Dept 2011]; Countrywide Home Loans v. Delphonse, 64 AD3d 624, 883 N.Y.S.2d 135 [2d Dept 2009] ). Claims for a deficiency judgment based upon written guarantees of payment are similarly established, prima facie, by the production of the underlying agreements and evidence of a default on the part of a guarantor defendant ( see Archer Capital Fund, L.P. v. GEL, LLC, 95 AD3d 800, 944 N.Y.S.2d 179 [2d Dept 2012] ).

Here, the moving papers established the plaintiff's prima facie entitlement to summary judgment on its complaint to the extent it asserts claims against the answering defendants, as it included copies of the note, mortgage and written guarantees as well as due evidence of defaults in payment by the obligor defendants. It was thus incumbent upon the answering defendants to submit proof sufficient to raise a genuine question of fact rebutting the plaintiff's prima facie showing or in support of the affirmative defenses asserted in the answers, if any, or others available to such defendants ( see Citibank, NA v. Van Brunt Prop., LLC, 95 AD3d 1158, 945 N.Y.2d 330 [2d Dept 2012]; Flagstar Bank v. Bellafiore, 94 AD3d 1044, 943 N.Y.S.2d 551 [2d Dept 2012]; Grogg Assocs. v. South Rd. Assocs., 74 AD3d 1021, 907 N.Y.S.2d 22 [2d Dept 2010]; Washington Mut. Bank v. O'Connor, 63 AD3d 832, 880 N.Y.S.2d 696 [2d Dept 2009]; J.P. Morgan Chase Bank, NA v. Agnello, 62 AD3d 662, 878 N.Y.S.2d 397 [2d Dept 2009]; Household Fin. Realty Corp. of New York v. Winn, 19 AD3d 545, 796 N.Y.S.2d 533 [2d Dept 2005] ).

No such question of fact was raised by answering defendant, 542 Walt Whitman Associates, LLC, as the court is without receipt of opposing papers from such defendant ( see Flagstar Bank v. Bellafiore, 94 AD3d 1044,supra ). Summary judgment is thus awarded to the plaintiff on its complaint against defendant 542 Walt Whitman Associates, LLC.

The opposition submitted by the obligor defendants is set forth in their cross moving papers. Of the nine affirmative defenses asserted in their joint answer, only the Fourth and Eighth, which challenge the plaintiff's standing, are asserted in opposition to the plaintiff's motion. Also asserted in opposition is the procedural defense afforded by CPLR 3212(f), which rests upon claims that the plaintiff's motion is premature due to the absence of disclosure. Finally, a chronicle of the defendants' family ownership of the premises and a recitation of recent familial circumstances, including a failed attempt to secure a forbearance agreement from the plaintiff by a former attorney retained by said defendants, are asserted as grounds for a denial of the plaintiff's motion in the affidavit of defendant guarantor, Jennifer Taylor. The court finds, however, for the reasons outlined below, that none of the submissions in opposition raise any genuine issues of fact necessary to...