| Neighborhood Hous. Servs. of N.Y. City, Inc. v Meltzer |
| 2009 NY Slip Op 08592 [67 AD3d 872] |
| November 17, 2009 |
| Appellate Division, Second Department |
| Neighborhood Housing Services of New York City, Inc.,Appellant, v C. Lloyd Meltzer, Also Known as Clyde Lloyd Meltzer, and Another,Defendant and Third-Party Plaintiff-Respondent, and City of New York et al., Respondents. Erinconstruction and Development Co., Inc., et al., Third-PartyDefendants-Respondents. |
—[*1] Marcus Attorneys, Brooklyn, N.Y. (Amy J. Mayer and Jed Marcus of counsel), forrespondent C. Lloyd Meltzer, also known as Clyde Lloyd Meltzer and another.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from somuch of an order of the Supreme Court, Kings County (Jacobson, J.), dated May 5, 2008, asdenied those branches of its motion which were for summary judgment on the complaint insofaras asserted against the defendant C. Lloyd Meltzer, also known as Clyde Lloyd Meltzer, alsoknown as Clyde Meltzer, to dismiss that defendant's counterclaims, to strike that defendant'sanswer, to appoint a referee to compute the amount owed to it, and to sever the third-partyaction, and, in effect, denied that branch of its motion which was to amend the caption to deletethe defendants sued herein as "John Doe No. 1" to "John Doe No. XX," inclusive, and grantedthat branch of the cross motion of the third-party defendant Erin Construction and DevelopmentCo., Inc., which was for leave to serve an answer and counterclaims in the foreclosure action asthe defendant "John Doe No. 1."
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costspayable by the defendant C. Lloyd Meltzer, also known as Clyde Lloyd Meltzer, also known asClyde Meltzer and the third-party defendant Erin Construction and Development Co., Inc., to theplaintiff, the plaintiff's motion is granted, that branch of the motion of the third-party defendantErin Construction and Development Co., Inc., which was for leave to serve an answer andcounterclaims in the foreclosure action as the defendant "John Doe No. 1," is denied, and thematter is remitted to the Supreme Court, Kings County, for the appointment of a referee tocompute the amount owed to the plaintiff.
The plaintiff established its prima facie entitlement to judgment as a matter of law bypresenting the subject mortgage, the unpaid note, and evidence of the default of the defendant C.Lloyd Meltzer, also known as Clyde Lloyd Meltzer, also known as Clyde Meltzer (hereinafterMeltzer) (see Countrywide HomeLoans, Inc. v Delphonse, 64 AD3d 624, 625-626 [2009]; Washington Mut. Bank, F.A. vO'Connor, 63 AD3d 832, 833 [2009]; Daniel Perla Assoc., LP v 101 Kent Assoc., Inc., 40 AD3d 677[2007]; US Bank Trust N.A. Trustee vButti, 16 AD3d 408 [2005]; Republic Natl. Bank of N.Y. v O'Kane, 308 AD2d482 [2003]). In opposition, Meltzer failed to raise an issue of fact sufficient to require a trial ofhis defenses and counterclaims (see U.S. Bank Trust N.A. Trustee v Butti, 16 AD3d at408). Accordingly, the Supreme Court should have granted those branches of the plaintiff'smotion which were for summary judgment on the complaint insofar as asserted against Meltzer,to dismiss Meltzer's counterclaims, to strike Meltzer's answer, and to appoint a referee tocompute the amount owed to the plaintiff.
The Supreme Court also erred in denying that branch of the plaintiff's motion which was tosever the third-party action and, in effect, denying that branch of the plaintiff's motion which wasto amend the caption to delete the John Doe defendants, and in granting that branch of themotion of the third-party defendant Erin Construction and Development, Co., Inc. (hereinafterErin), which was for leave to serve an answer and counterclaims in the foreclosure action as thedefendant "John Doe No. 1." The plaintiff demonstrated that none of the John Doe defendantshad been identified or served with process. In addition, Erin was not a necessary party to theforeclosure action, as its purported status as a subordinate lienor did not arise until after theplaintiff filed its notice of pendency (see Polish Natl. Alliance of Brooklyn v White EagleHall Co., 98 AD2d 400, 404 [1983]). Furthermore, the counterclaims Erin proposed tointerpose against the plaintiff sought monetary relief unrelated to the subject mortgage, and didnot affect the validity thereof (see First Union Mtge. Corp. v Fern, 298 AD2d 490[2002]).
We remit the matter to the Supreme Court, Kings County, to appoint a referee to computethe amount owed to the plaintiff. Prudenti, P.J., Miller, Chambers and Roman, JJ., concur.