Indymac Venture, LLC v. Amus

• Decision Date: 29 August 2018
• Docket Number: 2016–02132,Index No. 58310/12
• Parties: INDYMAC VENTURE, LLC, respondent, v. Todd AMUS, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 883
83 N.Y.S.3d 571

INDYMAC VENTURE, LLC, respondent,
v.
Todd AMUS, et al., appellants, et al., defendants.

2016–02132
Index No. 58310/12

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

Submitted—April 12, 2018
August 29, 2018

83 N.Y.S.3d 572

Annette G. Hasapidis, South Salem, NY, for appellants.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Marie Polito Hofsdal of counsel), for respondent.

REINALDO E. RIVERA, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Todd Amus and Nora Amus appeal from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Westchester County (Francesca E. Connolly, J.), dated February 22, 2016. The order and judgment of foreclosure and sale, upon an order of the same court (Robert M. DiBella, J.) dated March 27, 2015, granting the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against those defendants, granted the plaintiff's motion to confirm a referee's report and for a judgment of foreclosure and sale and directed the sale of the subject premises.

83 N.Y.S.3d 573

ORDERED that the order and judgment of foreclosure and sale is affirmed, with costs.

The defendants Todd Amus and Nora Amus (hereinafter together the appellants) were the owners of the subject property, located in North Salem. They obtained a loan from IndyMac Bank, FSB (hereinafter the original lender), to finance the construction of a 12,000–square–foot extension to the property. On June 26, 2007, Todd Amus, as borrower, executed and delivered to the original lender a number of documents in connection with the loan (hereinafter collectively the loan documents), including an adjustable rate note (hereinafter the note) in the amount of $2,730,000, which was amended and supplemented by a residential construction loan addendum amending note (hereinafter the note addendum), and a residential construction loan agreement. To secure the obligations under the loan documents, the appellants executed and delivered to the original lender the subject construction loan mortgage (hereinafter the mortgage).

In 2012, the plaintiff commenced this action to foreclose the mortgage, alleging that the appellants had defaulted under the terms of the loan documents by, inter alia, failing to make the required monthly interest payments, failing to complete the construction by November 25, 2009, as required, and failing to pay the property taxes as they came due, thereby allowing liens to be filed against the property. The appellants filed a verified answer with affirmative defenses, set-offs, and counterclaims. In a prior order, the Supreme Court granted all branches of a motion by the plaintiff pursuant to CPLR 3211 to dismiss the affirmative defenses, set-offs, and counterclaims, except for that branch which was to dismiss the eighth affirmative defense, alleging that the appellants were not in default.

Subsequently, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the appellants and dismissing their eighth affirmative defense, and to appoint a referee to compute the amount due. The appellants opposed the motion. In an order dated March 27, 2015, the Supreme Court granted the motion. Thereafter, the court granted the plaintiff's subsequent motion, inter alia, for a judgment of...