| Capstone Bus. Credit, LLC v Imperia Family Realty, LLC |
| 2010 NY Slip Op 01450 [70 AD3d 882] |
| February 16, 2010 |
| Appellate Division, Second Department |
| Capstone Business Credit, LLC, Plaintiff/Third-PartyDefendant-Appellant, v Imperia Family Realty, LLC, et al., Respondents, and EnioImperia, Defendant/Third-Party Plaintiff-Respondent, et al., Third-PartyDefendants. |
—[*1] Frank J. Monteleone, New York, N.Y., for defendant/third-partyplaintiff-respondent.
In a consolidated action to foreclose a mortgage, and for a judgment declaring the rights andobligations of the parties to an "inter-creditor agreement" dated March 15, 2005, theplaintiff/third-party defendant appeals, as limited by its brief, from (1) so much of an order of theSupreme Court, Westchester County (Nicolai, J.), entered October 15, 2008, as denied thosebranches of its motion which were for summary judgment on the complaint to foreclose thesubject mortgage and dismissing the seventh cause of action in the third-party complaint insofaras asserted against it, and (2) so much of an order of the same court entered February 10, 2009,as, upon reargument, adhered to the original determination in the order entered October 15, 2008denying that branch of its motion which was for summary judgment on the complaint toforeclose the subject mortgage, granted the defendant/third-party plaintiff's cross motion forleave to reargue his opposition to that branch of the motion of the plaintiff/third-party defendantwhich was for summary judgment, in effect, dismissing so much of the eleventh cause of actionin the third-party complaint as sought a judgment declaring that the subject mortgage is null andvoid, which had been granted in the order entered October 15, 2008, and, upon reargument,vacated that portion of the order entered October 15, 2008, and denied that branch of its motion.
Ordered that the appeal from so much of the order entered October 15, 2008, as denied thatbranch of the motion of the plaintiff/third-party defendant which was for summary judgment onthe complaint to foreclose the subject mortgage is dismissed, as that portion of the order wassuperseded by the order entered February 10, 2009, made upon reargument; and it is further,
Ordered that the order entered October 15, 2008, is modified, on the law, by deleting theprovision thereof denying that branch of the motion of the plaintiff/third-party defendant whichwas for summary judgment dismissing so much of the seventh cause of action in the third-[*2]party complaint which was to recover damages on behalf ofImperia Brothers, Inc., for the alleged waste of its corporate assets, and substituting therefor aprovision granting that branch of the motion; as so modified, the order entered October 15, 2008,is affirmed insofar as reviewed; and it is further,
Ordered that the order entered February 10, 2009, is modified, on the law, the facts, and inthe exercise of discretion, (1) by deleting the provision thereof which, upon reargument, adheredto the original determination in the order entered October 15, 2008, denying that branch of theplaintiff/third-party defendant's motion which was for summary judgment on the complaint toforeclose the subject mortgage, and substituting therefor a provision, upon reargument, vacatingthat portion of the order dated October 15, 2008, and granting that branch of the motion forsummary judgment, and (2) by deleting the provision thereof granting the cross motion of thedefendant/third-party plaintiff for leave to reargue his opposition to that branch of theplaintiff/third-party defendant's motion which was for summary judgment, in effect, dismissingso much of the eleventh cause of action in the third-party complaint as sought a judgmentdeclaring that the subject mortgage is null and void, and substituting therefor a provisiondenying the cross motion; as so modified, the order entered February 10, 2009, is affirmedinsofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff third-party defendant.
In order to establish prima facie entitlement to summary judgment in a foreclosure action, aplaintiff must submit the mortgage and unpaid note, along with evidence of default (see U.S. Bank Natl. Assn. TR U/S 6/01/98[Home Equity Loan Trust 1998-2] v Alvarez, 49 AD3d 711, 712 [2008]; Hoffman vKraus, 260 AD2d 435, 436 [1999]). The burden then shifts to the defendant to demonstrate"the existence of a triable issue of fact as to a bona fide defense to the action, such as waiver,estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff"(Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467 [1997]; see Nassau Trust Co. vMontrose Concrete Prods. Corp., 56 NY2d 175, 183 [1982]).
The plaintiff/third-party defendant, Capstone Business Credit, LLC (hereinafter Capstone),the assignee of the first mortgage executed by the defendant Imperia Family Realty, LLC,established, prima facie, its entitlement to judgment as a matter of law (see EMC Mtge. Corp.v Riverdale Assoc., 291 AD2d 370 [2002]). In opposition, the defendants failed to raise atriable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; State ofNew York Mtge. Agency v Lang, 250 AD2d 595, 595-596 [1998]). Accordingly, theSupreme Court should have granted that branch of Capstone's motion which was for summaryjudgment on the complaint in the foreclosure action.
In addition, the Supreme Court should have granted that branch of Capstone's motion whichwas for summary judgment dismissing so much of the seventh cause of action in the third partycomplaint which was to recover damages on behalf of Imperia Brothers, Inc., for the allegedwaste of its corporate assets. In response to its prima facie showing that the defendant/third-partyplaintiff sold his interest in that entity prior to interposing that cause of action, and thus had nostanding to pursue it (cf. Artigas vRenewal Arts Realty Corp., 22 AD3d 327, 328 [2005]), the defendant/third-partyplaintiff failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68NY2d 320 [1986]).
The Supreme Court improvidently exercised its discretion in granting that branch of thedefendant/third-party plaintiff's cross motion which was for leave to reargue his opposition tothat branch of Capstone's motion which was for summary judgment, in effect, dismissing somuch of the eleventh cause of action in the third-party complaint as sought a judgment declaringthat its first mortgage is null and void, which had been granted in the order entered October 15,2008. The Supreme Court did not overlook or misapprehend the facts or law, or mistakenlyarrive at its earlier decision (seeEverhart v County of Nassau, 65 AD3d 1277, 1278 [2009]; Matter of Williams v Board of Educ. ofCity School Dist. of City of N.Y., 24 AD3d 458, 459 [2005]; Daluise v Sottile, 15 AD3d 609,609 [2005]).
Capstone's remaining contentions are without merit. Covello, J.P., Santucci, Miller and Eng,JJ., concur.