Khoury v. Alger
Decision Date | 20 June 1991 |
Citation | 174 A.D.2d 918,571 N.Y.S.2d 829 |
Parties | George KHOURY, Respondent, v. Robert K. ALGER, Respondent, and Cindy Alger, now known as Cindy Brunetto, Appellant. |
Court | New 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.
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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