Flushing Sav. Bank, FSB v. Siunykalimi

• Decision Date: 10 April 2012
• Citation: 94 A.D.3d 807,2012 N.Y. Slip Op. 02629,941 N.Y.S.2d 719
• Parties: FLUSHING SAVINGS BANK, FSB, appellant, v. Rahim SIUNYKALIMI, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02629

94 A.D.3d 807

941 N.Y.S.2d 719

FLUSHING SAVINGS BANK, FSB, appellant,

v.Rahim SIUNYKALIMI, et al., respondents, et al., defendants.

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

April 10, 2012.

Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, N.Y. (Ronald M. Terenzi of counsel), for appellant.

Michael T. Sucher, Brooklyn, N.Y. (Danielle Sucher and Andrew M. Shabasson of counsel), for respondents.

PETER B. SKELOS, J.P., RANDALL T. ENG, ARIEL E. BELEN, and JEFFREY A. COHEN, JJ.

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated January 13, 2011, which, in effect, granted that branch of the motion of the defendants Rahim Siunykalimi and 1490 Bedford, LLC, which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against them on the condition that they satisfy mortgage arrears in the sum of $54,921.62 on or before February 3, 2011.

ORDERED that the order is reversed, on the law, with costs, and that branch of the motion of the defendants Rahim Siunykalimi and 1490 Bedford, LLC, which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against them is denied.

The defendant Rahim Siunykalimi, the manager and sole member of the defendant 1490 Bedford, LLC (hereinafter together the defendants), purchased real property in Brooklyn at a foreclosure auction and took title by referee's deed. Siunykalimi gave a mortgage on the premises to the plaintiff, Flushing Savings Bank, FSB, securing a mortgage note in the principal sum of $517,000. The note provided, among other things, that the mortgage holder could opt to accelerate the debt after an obligor's default in paying any installment of principal and interest. The plaintiff alleged that Siunykalimi first defaulted on February 1, 2010. Thereafter, the plaintiff elected that the entire principal balance, along with all additional fees, should become immediately due and payable in full. The plaintiff then commenced this action to foreclose on the subject property. Shortly thereafter, the mortgage was assigned to Bedford Partners, 2010, LLC.

Prior to serving an answer, the defendants moved, inter alia, pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against them. The defendants averred that Siunykalimi timely tendered monthly mortgage payments to the plaintiff, but that the plaintiff failed to cash the checks, and was therefore not entitled to accelerate the debt. In support of their motion, the defendants submitted, inter alia, documentary evidence consisting of bank statements for the relevant period and copies of the allegedly tendered checks. The defendants also submitted the affidavit of Siunykalimi's sister, who alleged that she personally mailed the checks to the plaintiff. The Supreme Court, in effect, granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against them on the condition that they remit payment for all of the missing monthly payments due through February 2011 by a specified date. The plaintiff, by its successor in interest, Bedford Partners, 2010, LLC, appeals, and we reverse.

“A party seeking dismissal pursuant to CPLR 3211(a)(1) on the ground that its defense is founded upon documentary evidence has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim” ( Mazur Bros. Realty, LLC v. State of New York, 59 A.D.3d 401, 402, 873...