Reale v. Tsoukas
| Decision Date | 11 January 2017 |
| Citation | 2017 N.Y. Slip Op. 00206,146 A.D.3d 833,45 N.Y.S.3d 148 |
| Parties | Robert E. REALE, appellant, v. Gregory TSOUKAS, et al., respondents, et al., defendant. |
| Court | New York Supreme Court — Appellate Division |
Pearce Law Firm, New York, NY (Jessica M. Pearce and Donald Pearce of counsel), for appellant.
Fidelity National Law Group, New York, NY (Hilary R. Levine of counsel), for respondents.
JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and HECTOR D. LaSALLE, JJ.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Dollard, J.), dated September 23, 2014, as granted the motion of the defendants Gregory Tsoukas, Panayiotis Tsoukas, and Everbank for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
This is an action to foreclose a mortgage encumbering two parcels of real property in Staten Island, one located on Richmond Avenue (hereinafter the Richmond property), the other on Nicolosi Loop (hereinafter the Nicolosi property). The subject mortgage, a so-called "spreader mortgage," secured a loan in the amount of $110,000, given by the plaintiff to the then owner of both properties, the defendant Lori Martinelli, also known as Lori Menake (hereinafter Martinelli). This foreclosure action relates solely to the Richmond property, which is currently owned by the defendants Gregory Tsoukas and Panayiotis Tsoukas (hereinafter together Tsoukas).
On March 11, 2008, Martinelli refinanced the Nicolosi property for the sum of $1,500,000. The plaintiff received a total of $1,381,429.26 from the refinancing and executed satisfactions of mortgage pertaining to each of the two mortgages of record encumbering the Nicolosi property at that time, including the subject mortgage. Thus, by a satisfaction of mortgage dated March 12, 2008 (hereinafter the satisfaction), the plaintiff "certif[ied]" that the subject mortgage had been paid and consented that it be discharged of record. However, the satisfaction further stated that it was "given only to the extent that the Mortgage affects [the Nicolosi property]." The plaintiff now seeks to foreclose the subject mortgage, which he contends was not satisfied by the Nicolosi property refinance, or anytime before or since, with respect to the Richmond property.
Relying on the satisfaction and other documents from the refinance closing and the subsequent closing on the sale of the Richmond property, Tsoukas and the defendant Everbank (hereinafter collectively the defendants) moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the mortgage the plaintiff sought to foreclose had been satisfied. The Supreme Court, inter alia, granted the defendants' motion.
Contrary to the plaintiff's contention, the evidence submitted by the defendants in support of their motion was sufficient to establish, prima facie, that the debt underlying the subject mortgage was paid in full at the 2008 refinance of the Nicolosi property (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). A plaintiff cannot foreclose on a mortgage if the debt it secures has been satisfied (see Hellas Fos, Inc. v. Russo, 84 A.D.3d 1166, 1167, 924 N.Y.S.2d 447 ).
In opposition, the plaintiff submitted his own affidavit and that of a nonparty who had represented him at the refinance, along with a spreadsheet allegedly showing how the monies the plaintiff received at the refinance were used to pay various loans owed by Martinelli, but not the debt underlying the subject mortgage. These submissions, and the plaintiff's conclusory and speculative allegations that the documents evidencing full payment of the subject mortgage were not reliable, were insufficient to defeat summary judgment (see Zuckerman v. City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Matter of Agai v. Diontech Consulting, Inc., 138 A.D.3d 736, 737, 29 N.Y.S.3d 441 ; ...
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