| Brandywine Pavers, LLC v Bombard |
| 2013 NY Slip Op 05402 [108 AD3d 1209] |
| July 19, 2013 |
| Appellate Division, Fourth Department |
| Brandywine Pavers, LLC, Respondent, v Pat J. Bombard,Appellant, et al., Defendants. |
—[*1] Hinman, Howard & Kattell, LLP, Binghamton (Thomas W. Cusimano, Jr., ofcounsel), for plaintiff-respondent.
Appeal from an amended judgment of the Supreme Court, Onondaga County (JohnC. Cherundolo, A.J.), entered November 15, 2012 in a foreclosure action. The amendedjudgment, inter alia, directed the Referee to sell the subject real property as one parcel.
It is hereby ordered that the amended judgment so appealed from is unanimouslyaffirmed without costs.
Memorandum: Plaintiff commenced this action to foreclose on a mortgage that wassecured by property owned by Pat J. Bombard (defendant). Supreme Court properlygranted plaintiff's motion to amend the judgment of foreclosure to permit the sale of allof the premises described in plaintiff's summons and complaint and directed the Refereeto sell the premises as one parcel. Contrary to defendant's contention, plaintiff's motionwas not one seeking leave to renew its motion for summary judgment on the complaint,but rather was a motion to amend or modify the judgment (see CPLR 2221 [a],[e]). To the extent that defendant challenges the propriety of the court's prior ordergranting plaintiff's motion for summary judgment, defendant is precluded from raisingthose challenges because his appeal from that prior order was dismissed for want ofprosecution (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 754-756[1999]; Bray v Cox, 38 NY2d 350, 355 [1976]).
In any event, even if we were to consider plaintiff's challenges in the exercise of ourdiscretion (see Knauer vAnderson, 2 AD3d 1314, 1314-1315 [2003], affd sub nom. Rubeis v AquaClub, Inc., 3 NY3d 408 [2004]), we would conclude that they are without merit.Plaintiff met its initial burden on the summary judgment motion by submitting the noteand mortgage together with an affidavit of nonpayment (see Manufacturers & TradersTrust Co. v True-Tone Sound [appeal No. 1], 288 AD2d 951, 951 [2001]; I.P.L.Corp. v Industrial Power & Light. Corp., 202 AD2d 1029, 1029 [1994]). "Theburden then shifted to defendant[ ] to attempt to defeat summary judgment by productionof evidentiary material in admissible form demonstrating a triable issue of fact withrespect to some defense to plaintiff's recovery on the note[ ] and [mortgage]" (I.P.L.Corp., 202 AD2d at 1029). In opposition to the motion, defendant claimed that heintended to mortgage only a portion of the property described in the mortgage. "Underlong accepted principles[, however,] one who signs [*2]adocument is, absent fraud or other wrongful act of the other contracting party, bound byits contents" (Da Silva v Musso, 53 NY2d 543, 550 [1981]; see M&T Bank vHR Staffing Solutions, Inc. [appeal No. 2], 106 AD3d 1498, 1499 [2013]). " '[A]party is under an obligation to read a document before he or she signs it, and a partycannot generally avoid the effect of a [document] on the ground that he or she did notread it or know its contents' " (Cash v Titan Fin. Servs., Inc., 58 AD3d 785, 788 [2009];see Gillman v Chase Manhattan Bank, 73 NY2d 1, 11 [1988]). Whetherdefendant intended to mortgage only part of his property is irrelevant where the writing isunambiguous that it included all the property (see generally W.W.W. Assoc. vGiancontieri, 77 NY2d 157, 162 [1990]).
Defendant further contends that the court erred in issuing the amended judgmentbecause there is a question of fact whether the two parcels described in the mortgage canbe sold as one parcel. We reject that contention. Plaintiff submitted evidence that theReferee determined that selling only one of the parcels would create an illegalsubdivision. In opposition to plaintiff's motion to amend the judgment of foreclosure,defendant failed to submit any evidence that his property was ever subdivided and thuscould be sold separately.
Finally, defendant's contention that the court erred in not granting him a settlementconference pursuant to CPLR 3408 is improperly raised for the first time on appeal(see Ciesinski v Town of Aurora, 202 AD2d 984, 985 [1994]). In any event, hiscontention is without merit. CPLR 3408 provides for mandatory settlement conferencesin residential foreclosure actions and applies to "any residential foreclosure actioninvolving a home loan . . . in which the defendant is a resident of theproperty subject to foreclosure" (CPLR 3408 [a]). CPLR 3408 does not apply todefendant because he was not a resident of the property. Defendant further contends thatCPLR 3408 applies to defendant Erma C. Jerva, but defendant lacks standing to raisearguments on her behalf (see generally CPLR 5511; People v Park Ave. Plastic Surgery,P.C., 48 AD3d 367, 367 [2008]; Raven El. Corp. v City of New York,291 AD2d 355, 355 [2002]; Matter of Nesrine E., 287 AD2d 565, 565 [2001]).Present—Scudder, P.J., Centra, Fahey, Carni and Lindley, JJ.