Great Ajax Operating P'ship L.P. v. PCG Reo Holdings, LLC

• Decision Date: 04 March 2021
• Docket Number: Index No. 651940/17,Case No. 2020-02999,13275
• Citation: Great Ajax Operating P'ship L.P. v. PCG Reo Holdings, LLC, 192 A.D.3d 420, 139 N.Y.S.3d 811(Mem) (N.Y. App. Div. 2021)
• Parties: GREAT AJAX OPERATING PARTNERSHIP L.P., Plaintiff–Appellant, v. PCG REO HOLDINGS, LLC, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 420

139 N.Y.S.3d 811 (Mem)

GREAT AJAX OPERATING PARTNERSHIP L.P., Plaintiff–Appellant,

v.PCG REO HOLDINGS, LLC, et al., Defendants–Respondents.

13275

Index No. 651940/17

Case No. 2020-02999

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

ENTERED March 4, 2021

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, White Plains (Robert A. Spolzino of counsel), for appellant.

Blank Rome LLP, New York (Timothy W. Salter of counsel), for respondents.

Renwick, J.P., Kennedy, Scarpulla, Shulman, JJ.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered February 26, 2020, which granted defendants' motion for summary judgment dismissing the complaint and for attorneys' fees, unanimously affirmed, with costs.

Initially, we note that "there is no requirement that evidence be submitted by affidavit to prevail on a motion for summary judgment" ( Muniz v. Bacchus, 282 A.D.2d 387, 388, 724 N.Y.S.2d 46 [1st Dept. 2001], citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).

Plaintiff's claims arising from the sale of the mortgage loan secured by a property in New Jersey were properly dismissed as barred by judicial estoppel. Plaintiff "procured a judgment in its favor as a result of the inconsistent position[s] taken" before a New Jersey court, where it argued that it owned the $185,000 note and mortgage that listed the incorrect address due to a scrivener's error, the note and mortgage were valid, and a satisfaction of mortgage was incorrectly filed ( Kalikow 78/79 Co. v. State of New York, 174 A.D.2d 7, 11, 577 N.Y.S.2d 624 [1st Dept. 1992], appeal dismissed 79 N.Y.2d 1040, 584 N.Y.S.2d 448, 594 N.E.2d 942 [1992] ).

The breach of contract cause of action arising from the transfer of five real estate owned (REO) properties in New York was properly dismissed because defendants delivered deeds for those properties within a reasonable time under the circumstances ( Savasta v. 470 Newport Assoc., 82 N.Y.2d 763, 765, 603 N.Y.S.2d 821, 623 N.E.2d 1171 [1993] ; see also Manhattan Life Ins. Co. v. Continental Ins. Co., 33 N.Y.2d 370, 372, 353 N.Y.S.2d 161, 308 N.E.2d 682 [1974] ["Transfer of title is accomplished ... by the delivery of an executed deed"]). Nothing in the record shows that the deeds originally provided were invalid or that plaintiff attempted, but was unable, to record them. Rather, plaintiff requested new deeds specifically to avoid paying additional fees to cover the months during which it did not seek to record them.

The cause of action for fraud, arising from defendants' alleged representations that they would provide new deeds and resolve issues with recording them, as required by § 4.04(c) of the contract, was correctly dismissed as duplicative of the contract claim (see J.E. Morgan Knitting Mills v. Reeves Bros., 243 A.D.2d 422, 423, 663 N.Y.S.2d 211 [1st Dept. 1997] ).

Plaintiff's proffered damages, based on defendants' alleged failure to transfer title to the properties for almost two years while resolving issues with recording the deeds, are unsubstantiated by any documentation (see e.g. Lodato v. Greyhawk N. Am., LLC, 39 A.D.3d 494, 495–496, 834 N.Y.S.2d 239 [2d Dept. 2007] ; Home Boys Shopping Network v. Lloyd's N.Y. Ins. Co., 237 A.D.2d 164, 655 N.Y.S.2d 365 [1st...