| 1855 E. Tremont Corp. v Collado Holdings LLC |
| 2013 NY Slip Op 00402 [102 AD3d 567] |
| January 24, 2013 |
| Appellate Division, First Department |
| 1855 East Tremont Corp., Appellant, v ColladoHoldings LLC et al., Respondents, et al., Defendants. |
—[*1] Catafago Law Firm, P.C., New York (Jacques Catafago of counsel), forrespondents.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered October 7, 2011,which, to the extent appealed from, denied plaintiff's motion for summary judgmentdismissing defendants' affirmative defenses and counterclaim, awarding plaintiff ajudgment of foreclosure, and referring the matter to a referee for an accounting of theamount due to plaintiff under the subject mortgage, unanimously reversed, on the law,with costs, the motion granted, and the matter remanded for appointment of a referee, tocompute and ascertain the amount due to plaintiff on the subject mortgage and to reporton whether the subject property should be sold in one parcel.
Plaintiff established its prima facie right to foreclosure with evidence that defendantsfailed to pay the outstanding principal due under the parties' mortgage documents andloan agreements (see ING RealEstate Fin. [USA] LLC v Park Ave. Hotel Acquisition, LLC, 89 AD3d 506 [1stDept 2011]; JPMCC2007-CIBC19 Bronx Apts., LLC v Fordham Fulton LLC, 84 AD3d 613 [1stDept 2011]).
In response to plaintiff's prima facie showing, defendants failed to raise any triableissue of fact regarding their affirmative defenses and counterclaim (see Red Tulip, LLC v Neiva,44 AD3d 204, 209 [1st Dept 2007], lv dismissed 10 NY3d 741 [2008]).Defendant TCB Property Management Corp.'s execution of a mortgage to securedefendant Collodo Holdings LLC's debt does not invalidate the mortgage or otherwiserender it unenforceable (see Amherst Factors v Kochenburger, 4 NY2d 203,207-208 [1958]; Levi v Commonwealth Land Title Ins. Co., 2011 WL 4542904,*5, 2011 US Dist LEXIS 112307, *14-15 [SD NY, Sept. 30, 2011, No. 09 Civ 8012(SHS)]). Nor is summary judgment precluded by discrepancies in the amounts of moneyclaimed by plaintiff to be outstanding. Notably, defendants do not dispute thatapproximately $700,000 was disbursed pursuant to the loan agreement, and they make noclaim on this appeal to have repaid any of the principal. Since defendants "challenge onlythe amount of the mortgage debt," the proper procedure here is an order of reference, todetermine the "amount due and owing to the plaintiff" (Johnson v Gaughan, 128AD2d 756, 757 [2d Dept 1987]).[*2]
We also reject defendants' argument that themortgage is unenforceable for lack of separate consideration. The extension of credit toCollado Holdings may itself be said to constitute consideration for the giving of themortgage (see Consumers Union of U.S., Inc. v Campbell, 1989 WL 304762, *5n 5, 1989 US Dist LEXIS 13634, *14 n 5 [SD NY, Nov. 16, 1989, Nos. 88 Civ 7980(JMW), 89 Civ 4704 (JMW)] ["It is settled law in New York that a contract of guarantyentered into concurrently with the principal obligation is supported by the sameconsideration which underlies the principal contract"]).
Also unavailing is defendants' suggestion that the mortgage is unenforceable becausethe lender did not issue the maximum amount issuable under the note. The note on itsface makes clear that a maximum of $2.258 million might be advanced, but notnecessarily the entire sum. Plaintiff has tendered affidavits and other evidenceestablishing that over $700,000 in principal was disbursed pursuant to the loanagreement in response to four requisition requests. Defendants do not dispute any of thisevidence or make any claim that they requested any further advances. For the foregoingreasons, TCB's counterclaim for lender liability, premised on the notion that it suffereddamages on account of the lender's alleged failure to disburse the entire $2.258 millionprovided for under the note, also fails.
We have considered defendants' remaining arguments, including their contention thatthe default notice was served at an improper address, and find them unavailing.Concur—Tom, J.P., Saxe, Moskowitz, Abdus-Salaam and Gische, JJ.