Khoury v. Alger

Decision Date20 June 1991
Citation174 A.D.2d 918,571 N.Y.S.2d 829
PartiesGeorge KHOURY, Respondent, v. Robert K. ALGER, Respondent, and Cindy Alger, now known as Cindy Brunetto, Appellant.
CourtNew York Supreme Court — Appellate Division

William J. Nealon III, Glens Falls, for appellant.

Bruce M. Jordan, Queensbury, for George Khoury, respondent.

William V. Canale, Glens Falls, for Robert K. Alger, respondent.

Before MAHONEY, P.J., and CASEY, MIKOLL, YESAWICH and CREW, JJ.

MAHONEY, Presiding Justice.

Appeal from a judgment of the Supreme Court (Dier, J.), entered March 20, 1990 in Warren County, which, inter alia, granted plaintiff's motion for summary judgment.

On November 4, 1981 plaintiff, as mortgagee, and defendant Robert K. Alger (hereinafter Alger) executed a note and mortgage for $65,000 at 10% interest, secured by certain property in the Town of Warrensburg, Warren County. Cindy Brunetto Alger (hereinafter Brunetto), Alger's wife, was not a signatory to the note or mortgage. The mortgage was to be paid in installments and contained a default provision which provided, in part, that the principal and interest thereon "shall become due and payable at the option of the [m]ortgagee" if payment of any installment of principal or of interest is not made within 30 days of the due date.

From September 1, 1982 and thereafter, Alger defaulted on mortgage payments of both principal and interest. He also apparently failed to pay real property taxes from 1987 through 1989. On April 18, 1989 a judgment of divorce was entered dissolving the Alger-Brunetto marriage. A stipulation incorporated into the marital judgment ordered that upon the sale of the mortgaged property and after payment of certain obligations, including plaintiff's mortgage, Brunetto was to receive $75,000 or one half of the net proceeds, whichever was greater.

Plaintiff commenced a foreclosure action on September 28, 1989 against Alger as mortgage debtor and Brunetto as a judgment creditor. 1 In her answer, Brunetto asserted the Statute of Limitations and laches as affirmative defenses and also counterclaimed against plaintiff and cross-claimed against Alger alleging fraud and demanding $75,000 in damages. Plaintiff moved for summary judgment on the foreclosure action and for an order dismissing Brunetto's answer and counterclaim. Alger, who did not answer the complaint, also moved to dismiss Brunetto's cross claim. Supreme Court granted plaintiff's motion for summary judgment, dismissed Brunetto's answer, counterclaim and cross claim, and ordered the property sold. Brunetto now appeals.

We affirm. Clearly, Alger, by not appearing in the main action, has no rights in this proceeding. As for Brunetto's counterclaim and cross claim for fraud, we conclude that they are legally insufficient since neither claim complies with CPLR 3016(b) which requires that the facts and circumstances constituting the fraud be stated in detail (see, Pitcherello v. Moray Homes, 150 A.D.2d 860, 862, 540 N.Y.S.2d 387; Lanzi v. Brooks, 54 A.D.2d 1057, 388 N.Y.S.2d 946, affd. 43 N.Y.2d 778, 402 N.Y.S.2d 384, 373 N.E.2d 278). Further, neither the counterclaim nor cross claim make out a cause of action for fraud since there is no showing of "a misrepresentation of material fact, intended to deceive [her], which cause[d] injury" (Ressis v. Herman, 122 A.D.2d 516, 517, 505 N.Y.S.2d 266, lv. dismissed 69 N.Y.2d 1017, 517 N.Y.S.2d 937, 511 N.E.2d 80). Accordingly, the counterclaim and cross claim were properly dismissed.

Finally, for the following reasons we conclude that the matter must...

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  • Bank of N.Y. v. Hutchinson
    • United States
    • New York Supreme Court
    • September 18, 2017
    ...action. Wells Fargo Bank, N.A. b. Cohen, 80 A.D.2d 753, 754, 915 N.Y.S.2d 569, 571, (2d Dept., 2010); Khoury v. Alger, 174 A.D.2d 9918, 191, 571 N.Y.S.2d 829 (3rd Dept., 1991).In this case, the borrower defaulted on the original loan effective October 1, 2005. According to Exhibit "E" of th......
  • U.S. Bank Nat'l Ass'n v. Atia
    • United States
    • New York Supreme Court — Appellate Division
    • December 4, 2019
    ...2008 through May 26, 2010, are time-barred (see Ditech Fin., LLC v. Reiss , 175 A.D.3d at 620, 107 N.Y.S.3d 108 ; Khoury v. Alger , 174 A.D.2d 918, 919, 571 N.Y.S.2d 829 ). In opposition, the plaintiff failed to raise a triable issue of fact. MASTRO, J.P., MALTESE, CONNOLLY and IANNACCI, JJ., ...
  • Ditech Fin., LLC v. Reiss
    • United States
    • New York Supreme Court — Appellate Division
    • August 21, 2019
    ...foreclosure action, to wit, unpaid installments from January 2009 through October 5, 2010, are time-barred (see Khoury v. Alger, 174 A.D.2d 918, 919, 571 N.Y.S.2d 829 ; see also Wells Fargo Bank v. Cohen, 80 A.D.3d at 754, 915 N.Y.S.2d 569 ). In opposition, the plaintiff failed to raise a q......
  • CitiMortgage, Inc. v. Ramirez
    • United States
    • New York Supreme Court
    • January 7, 2020
    ...302 A.D.2d 638, 639, citing, Loiacono v. Goldberg, 240 A.D.2d 476, 477; Goldman Sachs Mtge. Co. v. Mares, 135 A.D.3d 1121; Khoury v. Alger, 174 A.D.2d 918" (see, page 4 of this Court's Decision and Order dated April 5, 2018, in CitiMortgage, Inc. v. Jose Ramirez, et al., Index No. 2017-0108......
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1 books & journal articles
  • Chapter 30 STATUTES OF LIMITATIONS
    • United States
    • New York State Bar Association Contract Doctrine and Marital Agreements in New York
    • Invalid date
    ...of those installments of principal and interest that became due within six years of commencement of this action.); Khoury v. Alger, 174 A.D.2d 918, 571 N.Y.S.2d 829 (3d Dep't 1991); In re Edelheit, 18 Misc. 3d 1109(A), 856 N.Y.S.2d 23 (Sur. Ct., Nassau Co. 2007).[5382] Vigilant Ins. Co. of ......

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