| Mishal v Fiduciary Holdings, LLC |
| 2013 NY Slip Op 05884 [109 AD3d 885] |
| September 18, 2013 |
| Appellate Division, Second Department |
| Moshe Mishal, Appellant, v Fiduciary Holdings,LLC, Respondent, et al., Defendants. |
—[*1] Harry L. Klein, Brooklyn, N.Y., for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Schneier, J.), dated September 11, 2009, which deniedthat branch of his motion which was for summary judgment on the complaint insofar asasserted against the defendant Fiduciary Holdings, LLC, and granted the cross motion ofthe defendant Fiduciary Holdings, LLC, for leave to amend its answer.
Ordered that the order is reversed, on the law, on the facts, and in the exercise ofdiscretion, with costs, that branch of the plaintiff's motion which was for summaryjudgment on the complaint insofar as asserted against the defendant Fiduciary Holdings,LLC, is granted, and the cross motion of the defendant Fiduciary Holdings, LLC, forleave to amend its answer is denied.
The plaintiff met his initial burden of establishing his prima facie entitlement tojudgment as a matter of law by submitting the mortgage, the unpaid note, and hisaffidavit evidencing the default of the defendant Fiduciary Holdings, LLC (hereinafterFiduciary), in its payment obligations (see Solomon v Burden, 104 AD3d 839 [2013]; Wells Fargo Bank v Das Karla,71 AD3d 1006 [2010]; JPMorgan Chase Bank, N.A. v Agnello, 62 AD3d 662, 663 [2009]). Contrary tothe Supreme Court's determination, Fiduciary failed to raise a triable issue of fact inopposition.
As an initial matter, pursuant to the rider to the mortgage agreement, Fiduciaryvalidly "waive[d] the right to interpose any defense, setoff, counterclaim or crossclaim ofany nature or description" (Bank of Suffolk County v Kite, 49 NY2d 827, 828[1980]; see Inland Mtge. CapitalCorp. v Realty Equities NM, LLC, 71 AD3d 1089, 1090 [2010]; Milliken &Co. v Stewart, 182 AD2d 385, 387 [1992]). Although an exception to such a waiverexists for defenses sounding in fraud (see North Fork Bank v Computerized Quality Separation Corp.,62 AD3d 973, 974 [2009]; Federal Deposit Ins. Corp. v Marino Corp., 74AD2d 620, 620-621 [1980]), Fiduciary's unsubstantiated allegations are patentlyinsufficient to raise any questions of fact with respect to fraud in the inducement (see Stangel v Zhi Dan Chen,74 AD3d 1050, 1052 [2010]; J.L.B. Equities v Mind Over Money, 261AD2d 510, 511 [1999]; Laing Logging v International Paper Co., 228 AD2d843, 844-845 [1996]; Lanzi v Brooks, 54 AD2d 1057, 1058 [1976], affd43 NY2d 778 [1977]; see alsoJeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 54 AD3d 813, 815 [2008];Van Dorn Realty Corp. v Sundec Intl. Corp., 190 AD2d 516 [1993]).
In addition, although Fiduciary contends that the parties orally modified the terms of[*2]the mortgage agreement, the mortgage agreementcontains a "no oral modification" clause (see General Obligations Law §15-301 [1]; Cohen FashionOpt., Inc. v V & M Opt., Inc., 51 AD3d 619 [2008]), and Fiduciary offered noevidence that would justify disregarding this provision (see Rose v Spa RealtyAssoc., 42 NY2d 338, 343-344 [1977]).
While Fiduciary suggests that summary judgment must be denied due to a disputeover the amount owed, "the existence of a dispute as to the exact amount owed. . . to the plaintiff does not preclude the award of summary judgment to theplaintiff on the issue of foreclosure" (Shufelt v Bulfamante, 92 AD3d 936, 937 [2012];see 1-5 Bergman on New York Foreclosures § 5.15). Moreover,Fiduciary's contention that it may actually have paid the mortgage in full is not onlyraised for the first time on appeal, but also is entirely at odds with its priorrepresentations.
The Supreme Court improvidently exercised its discretion in granting Fiduciary'scross motion for leave to interpose an amended answer so as to assert various affirmativedefenses and counterclaims. "Pursuant to CPLR 3025 (b), leave to amend a pleadingshould be freely given, provided that the amendment is not palpably insufficient, doesnot prejudice or surprise the opposing party, and is not patently devoid of merit" (Rechler Equity B-1, LLC v AKRCorp., 98 AD3d 496, 498 [2012] [internal quotation marks omitted]; see Scotto v Georgoulis, 89AD3d 717, 719 [2011]; Mortgage Elec. Registration Sys., Inc. v Reid, 85 AD3d880, 881 [2011]). Here, the proposed amendments were either barred by the waiverprovision in the rider to the mortgage agreement, or premised on allegations that do notsupport the proposed affirmative defenses and counterclaims.
Fiduciary's remaining contentions are without merit. Mastro, J.P., Skelos, Balkin andLeventhal, JJ., concur.