Wells Fargo Bank N.A. v. Area Plumbing Supply, Inc.

• Decision Date: 10 May 2017
• Citation: 56 N.Y.S.3d 111,150 A.D.3d 932
• Parties: WELLS FARGO BANK N.A., etc., appellant, v. AREA PLUMBING SUPPLY, INC., et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 932
56 N.Y.S.3d 111

WELLS FARGO BANK N.A., etc., appellant,
v.
AREA PLUMBING SUPPLY, INC., et al., respondents, et al., defendants.

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

May 10, 2017.

56 N.Y.S.3d 112

Rosicki, Rosicki & Associates, P.C., Plainview, NY (Owen M. Robinson of counsel), for appellant.

Yolande I. Nicholson, P.C., Brooklyn, NY, for respondent Mousa A. Khalil.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and COLLEEN D. DUFFY, JJ.

In an action to foreclose four mortgages, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Grays, J.), entered July 9, 2014, as granted those branches of the motion of the defendants Area Plumbing Supply, Inc., and Mousa A. Khalil which were to vacate so much of a judgment of foreclosure and sale dated March 23, 2012, as related to property located at 109–26 101 Avenue, Ozone Park, and, in effect, to preliminarily enjoin the plaintiff from foreclosing on that property.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Area Plumbing Supply, Inc., and Mousa A. Khalil which was, in effect, to preliminarily enjoin the plaintiff from foreclosing on the subject property, and substituting therefor a provision denying that branch of the motion as academic; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant Mousa A. Khalil.

The plaintiff commenced this action to foreclose four commercial mortgages, all of which were executed on the same day, secured by four properties that allegedly were owned by the defendant Area Plumbing Supply, Inc. (hereinafter Area Plumbing). The complaint alleged that on or about November 8, 2004, Area Plumbing obtained four loans evidenced by promissory notes, pursuant to which Area Plumbing promised to pay a sum to New Century Mortgage Corporation (hereinafter New Century), and, as security for each note, Area Plumbing executed and delivered to New Century four mortgages, one for each of four specified properties. The complaint further alleged that each of the mortgages was duly recorded and, by assignments dated November 11, 2005, New Century assigned the note, mortgage, and related documents for each of the four loans to the plaintiff.

56 N.Y.S.3d 113

In the complaint, the plaintiff also named Mousa A. Khalil, the president of Area Plumbing, as an individual defendant. The plaintiff alleged that Khalil executed a guaranty for each of the four notes, and that Khalil "may be the owner of an interest in one or more of the Mortgaged...