| Chase Manhattan Bank v Douglas |
| 2009 NY Slip Op 02697 [61 AD3d 1135] |
| April 9, 2009 |
| Appellate Division, Third Department |
| Chase Manhattan Bank, as Trustee of the IMC Home Equity LoanTrust 1997-3, Respondent, v Amrita Ghosh Douglas, Appellant. |
—[*1] James A. Carlucci, Hudson, for respondent.
Peters, J. Appeal from an order of the Supreme Court (Connor, J.), entered December 28,2005 in Columbia County, which, among other things, dismissed defendant's counterclaims,upon a decision of the court.
In 1997, defendant mortgaged a parcel of property in the Town of Stockport, ColumbiaCounty. Defendant used the property as her second residence each weekend until late 2000,when she began to visit on a monthly basis. Defendant stopped making payments on themortgage in early 2000, prompting plaintiff to commence the instant foreclosure action inDecember 2000. Thereafter, repeated inspections of the property were conducted to ascertain itscondition and ensure that the home was secure.
When defendant visited the property in August 2001, she learned that a default judgment hadbeen entered against her and that a foreclosure sale had occurred. She also found that the vastmajority of her personal property had been removed from the residence. Thereafter, defendantmoved to vacate the default judgment and foreclosure sale on the ground that plaintiff had notserved her with the required papers. Supreme Court (Cannizzaro, J.) granted the motion andpermitted defendant to file an answer. In her answer, defendant asserted several counterclaims,alleging that plaintiff, through its various agents, unlawfully entered upon her property andremoved a significant amount of valuable personal property. Following a three-day [*2]bench trial, Supreme Court (Connor, J.) found that defendantdefaulted under the terms of the mortgage and dismissed her counterclaims as unsupported bythe record.
Defendant appeals, asserting that Supreme Court erroneously concluded that hercounterclaims were not supported by the evidence. When called upon to review a court's verdictfollowing a nonjury trial, "we independently review the weight of the evidence and may grantthe judgment warranted by the record, while according due deference to the trial judge's factualfindings particularly where . . . they rest largely upon credibility assessments" (Martin v Fitzpatrick, 19 AD3d954, 957 [2005]; accord Charles T.Driscoll Masonry Reconstruction Co., Inc. v County of Ulster, 40 AD3d 1289, 1291[2007]). We conclude that Supreme Court's factual findings comport with a fair and reasonableinterpretation of the evidence, and thus decline to disturb its dismissal of defendant'scounterclaims.
Here, defendant demonstrated that a significant amount of personal property was taken fromthe residence, yet offered nothing more than speculation to support her claim that plaintiff or itsagents were responsible for her loss. Defendant theorized at trial that the contractors retained byplaintiff to inspect and secure the property, principally Roy Walton, were involved in theconversion because they had visited the property at the time the loss allegedly occurred and hadaccess to the home. Explaining that some of the removed property was heavy and unwieldy,defendant testified that her suspicion of Walton's involvement was heightened when he andanother arrived at the residence in their pickup trucks. Yet, no evidence was presented that anyof plaintiff's agents were ever observed removing any of defendant's personal property or foundin possession of any such items and, following a criminal investigation into the matter, policeauthorities determined that Walton was not a suspect.
Countering defendant's paucity of proof, plaintiff presented evidence that the individualscontracted to inspect the premises, while permitted to remove hazardous material and garbage,lacked the authority to remove any personal property. Their inspection reports revealed that,upon an initial inspection of the house in May 2001, the residence was found to be unsecure andthere was trash "all over." Walton testified that in July 2001, when he first entered the house inthe course of his inspection, it was in extreme disarray and many of the items of personalproperty depicted in defendant's preloss photographs were not on the premises. Both Walton andHarry Shaffer, another contractor assigned to inspect the property, unequivocally testified thatthey did not take any of the items that defendant claimed were missing from the residence. Whiledefendant attacks the testimony of Walton as incredible, we defer to Supreme Court's resolutionof this issue due to its advantage of observing the witness as he testified (see Conolly vThuillez, 58 AD3d 973, 974 [2009]; Sterling v Sterling, 21 AD3d 663, 665 [2005]). Notably, inspectionreports further revealed that the residence was found to be unsecure on a number of occasionsafter Walton had secured the home and during the time when defendant claims her personalproperty was converted. Viewing the record as a whole and according deference to the court's "'assessment of the quality of the evidence' " (Silverman v Mergentime Corp./J.F. White,Inc., 252 AD2d 925, 926 [1998], quoting Callanan Indus. v Olympian Dev., 225AD2d 941, 942 [1996]; accord Pronti vSmutzinger, 52 AD3d 1015, 1016 [2008]), we find no basis to disturb its finding thatdefendant's counterclaims were not proven.
Finally, notwithstanding the language employed in its decision, the record makes clear thatSupreme Court appropriately treated defendant's counterclaims as independent claims rather thana defense to plaintiff's foreclosure action (compare LaSalle Bank N.A. v Kosarovich, 31AD3d 904 [2006]).[*3]
Mercure, J.P., Lahtinen, Kane and Malone Jr., JJ.,concur. Ordered that the order is affirmed, with costs.