| Shufelt v Bulfamante |
| 2012 NY Slip Op 01600 [92 AD3d 936] |
| February 28, 2012 |
| Appellate Division, Second Department |
| Thomas Shufelt, Respondent, v Maria Bulfamante et al.,Appellants. |
—[*1] Whalen & Whalen, Dover Plains, N.Y. (Thomas J. Whalen of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants appeal from an order of the SupremeCourt, Dutchess County (Sproat, J.), dated November 23, 2010, which granted the plaintiff'smotion for summary judgment on the complaint and dismissing the affirmative defenses andcounterclaims.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the plaintiff's motion which were for summary judgment dismissing so muchof the second and fourth affirmative defenses as asserted that the defendant Maria Bulfamante isentitled to an adjustment in the amount due under the mortgage note, and substituting therefor aprovision denying those branches of the motion; as so modified, the order is affirmed, withoutcosts or disbursements, upon searching the record, summary judgment is awarded to thedefendant Maria Bulfamante on so much of the second and fourth affirmative defenses asasserted that she is entitled to an adjustment in the amount due under the mortgage note to theextent of reducing her obligation pursuant to the face amount of the mortgage note by 6.33%, andthe matter is remitted to the Supreme Court, Dutchess County, for the recalculation of the dollaramount of her obligation under the mortgage note in accordance herewith and, inter alia, theentry of an appropriate judgment of foreclosure and deficiency judgment thereafter.
The plaintiff established, prima facie, that the defendant Maria Bulfamante (hereinafterMaria) was in default under the subject mortgage note by demonstrating the existence of the note,the execution thereof by Maria, and Maria's failure to make timely repayments thereunder. Inopposition to the plaintiff's showing, the defendants failed to raise a triable issue of fact.Moreover, the existence of a dispute as to the exact amount owed by Maria to the plaintiff doesnot preclude the award of summary judgment to the plaintiff on the issue of foreclosure (seeLong Is. Sav. Bank of Centereach, F.S.B. v Denkensohn, 222 AD2d 659 [1995]).Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion whichwere for summary judgment on the issue of foreclosure, dismissing the first and third affirmativedefenses and the counterclaims, all of which challenged the plaintiff's right to foreclosure, anddismissing so much of the second and fourth affirmative defenses as challenged the plaintiff's[*2]right to foreclosure.
Nonetheless, as the Court of Appeals explained in Paine v Upton (87 NY 327[1882]), a purchase-money mortgagor, such as Maria, is entitled to "an abatement from the bondand mortgage given for the purchase-money, proportionate to the deficiency of acreage" actuallytransferred to him or her by the purchase-money mortgagee, as contrasted with the acreagepurportedly transferred (Paine v Upton, 87 NY at 331; see Mills v Kampfe, 202NY 46 [1911]; Belknap v Sealey, 14 NY 143 [1856]; Shay v Mitchell, 50 AD2d404 [1976], affd 40 NY2d 1040 [1976]; Fisher v Zimmer, 286 App Div 1129[1955], affd 1 NY2d 721 [1956]; Firenzo v Baxter, 267 App Div 799 [1943];Rose v Wood, 7 Misc 2d 523 [1957]; 92 CJS, Vendor and Purchaser § 71). Asreflected in a rider to the contract at issue on the instant appeal, the sale here was expressly madeon a "per acre" basis (see generally E.H. Schopler, Annotation, Relief, by Way ofRescission or Adjustment of Purchase Price, for Mutual Mistake as to Quantity of Land, WhereContract of Sale Fixes Compensation at a Specified Rate Per Acre or Other Area Unit, 153ALR 4; C.T. Drechsler, Annotation, Relief by Way of Rescission or Adjustment of PurchasePrice for Mutual Mistake as to Quantity of Land, Where the Sale is in Gross, 1 ALR2d 9;Annotation, Measure and Elements of Damages Recoverable from Vendor Where There hasbeen Mistake as to Amount of Land Conveyed, 94 ALR3d 1091; 91 NY Jur 2d, RealProperty Sales and Exchanges § 38). Specifically, pursuant to the terms of the underlyingcontract of sale, the purchase price paid by Maria was at the per-acre rate of $1,800. Maria paidthe total sum of $180,000 to the plaintiff, reflecting the parties' understanding that 100 acres ofreal property were to be transferred. Maria paid the sum of $50,000 in cash to the plaintiff and,upon the transfer of the acreage, the plaintiff took back a purchase-money mortgage from Mariain the face amount of $130,000. The parcel actually transferred, however, comprised only 93.67acres, a deficiency of 6.33 acres, representing 6.33% of the total face amount of thepurchase-money mortgage.
The plaintiff failed to establish his prima facie entitlement to judgment as a matter of lawwith respect to the issue of whether Maria was entitled to a reduction in the amount due under themortgage note. Accordingly, regardless of the sufficiency of the defendants' opposition, theSupreme Court should not have granted those branches of the plaintiff's motion which were forsummary judgment dismissing so much of the second and fourth affirmative defenses as allegedthat Maria is entitled to an adjustment in the amount due under the disputed mortgage note, butshould have denied those branches of the motion. Further, upon searching the record, weconclude, as a matter of law, that the contract of sale was made on a "per acre" basis, that theparties intended that 100 acres of real property were to be transferred pursuant to the contract ofsale, that only 93.67 acres were actually transferred, and that the mortgage note is only applicableto 93.67 acres of real property. Consequently, we award summary judgment to Maria on so muchof the second and fourth affirmative defenses as sought an adjustment in her favor to the extentof reducing her obligation pursuant to the face amount of the mortgage note by 6.33%.Accordingly, the matter must be remitted to the Supreme Court, Dutchess County, for therecalculation of the dollar amount of her obligation under the mortgage note after reducing theface amount of the obligation by 6.33% and crediting any overpayments that may have beenmade and, inter alia, the entry of an appropriate judgment of foreclosure and deficiency judgmentthereafter. Rivera, J.P., Roman, Sgroi and Cohen, JJ., concur.