| New York Community Bank v Parade Place, LLC |
| 2012 NY Slip Op 04836 [96 AD3d 542] |
| June 14, 2012 |
| Appellate Division, First Department |
| New York Community Bank, Respondent, v Parade Place,LLC, et al., Appellants, et al., Defendants. |
—[*1] Farber Rosen & Kaufman, P.C., Rego Park (Richard C. Lunenfeld of counsel), forrespondent.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered May 4, 2010,which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for summaryjudgment as against defendant Parade Place, LLC, under index No. 117349/08, and orders, samecourt and Justice, entered on or about May 5, 2010, which, insofar as appealed from as limited bythe briefs, granted plaintiff's motions for summary judgment as against Parade Place anddefendants Saadia Shapiro and Marla Shapiro under index Nos. 117348/08 and 117350/08,unanimously affirmed, with costs.
Pursuant to CPLR 5520 (c), we deem Saadia Shapiro's and Marla Shapiro's appeals from theorder under index No. 117350/08 appeals from the order under index No. 117348/08 as well.
In opposition to plaintiff's prima facie showing that it was entitled to foreclosure, defendantscontended that plaintiff did not give the requisite notice of default under the respectivemortgages. However, their argument consists of the assertion that plaintiff failed to allegethat it gave the notice and the conditional statement that "if" it had not complied with the noticerequirement, it could not foreclose. These assertions do not raise an issue of fact whether plaintiffgave the requisite notice. Moreover, defendants never argued before the motion court that theyhad not received notice or that there was anything whatsoever improper about the notice, andthey may not raise these arguments for the first time on appeal.
Defendants also failed to raise issues of fact as to fraud in the inducement and unclean hands.In her affidavit, Saadia Shapiro makes conclusory and unsubstantiated assertions and does notactually state that plaintiff had agreed not to foreclose until the assemblage was complete or thatplaintiff knew about, and acquiesced, to the secondary financing (see Bank Leumi Trust Co.of N.Y. v Lightning Park, 215 AD2d 246 [1995]; Friesch-Groningsche HypotheekbankRealty Credit Corp. v Ward Equities, 188 AD2d 397 [1992]). Furthermore, defendantsappear to be impermissibly trying to use discovery as a "fishing expedition [because] [*2]they cannot set forth a reliable factual basis for their suspicions"(see Orix Credit Alliance v Hable Co., 256 AD2d 114, 116 [1998]).
The complaints' description of the properties subject to foreclosure is sufficient since therespective parcels can be identified and located with reasonable certainty (see Wilshire CreditCorp. v Y.R. Bldrs., 262 AD2d 404 [1999]). The mortgaged properties are identified by theiraddresses and references to tax maps, and for two of the three properties, a metes and boundsdescription is given as well. Furthermore, defendants failed to provide any documentation, orcitation to a public or other record, or any other evidence in admissible form, to support theirassertion that all three properties are now a single tax lot. Concur—Andrias, J.P., Sweeny,Manzanet-Daniels and Román, JJ. [Prior Case History: 2010 NY Slip Op31069(U).]