| GECMC 2007-C1 Burnett St., LLC v Hoti Enters.,L.P. |
| 2014 NY Slip Op 01431 [115 AD3d 642] |
| March 5, 2014 |
| Appellate Division, Second Department |
| GECMC 2007-C1 Burnett Street, LLC,Appellant-Respondent, v Hoti Enterprises, L.P., Respondent-Appellant, et al.,Defendants. |
—[*1] Arnold E. DiJoseph, P.C., New York, N.Y. (Arnold E. DiJoseph III, of counsel), forrespondent-appellant.
In an action to foreclose a consolidated mortgage, the plaintiff appeals (1) from anorder of the Supreme Court, Kings County (Lewis, J.), dated April 4, 2012, as amendedApril 4, 2012, which, in effect, granted that branch of the cross motion of the defendantHoti Enterprises, L.P., which was pursuant to CPLR 3211 (a) (3) to dismiss thecomplaint insofar as asserted against it and denied that branch of the plaintiff's motionwhich was, in effect, for summary judgment on the complaint insofar as asserted againstthat defendant, and (2), as limited by its brief, from so much of an order of the same courtdated June 13, 2012, as, in effect, upon reargument, adhered to its prior determination inthe order dated April 4, 2012, as amended April 4, 2012, and the defendant HotiEnterprises, L.P., cross-appeals from the order dated April 4, 2012, as amended April 4,2012.
Ordered that the cross appeal by the defendant Hoti Enterprises, L.P., is dismissed asabandoned; and it is further,
Ordered that the order dated April 4, 2012, as amended April 4, 2012, is reversed, onthe law, that branch of the cross motion of the defendant Hoti Enterprises, L.P., whichwas pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted against itis denied, and that branch of the plaintiff's motion which was, in effect, for summaryjudgment on the complaint insofar as asserted against Hoti Enterprises, L.P., is granted;and it is further,
Ordered that the appeal from order dated June 13, 2012, made, in effect, uponreargument, is dismissed as academic in light of the determination on the appeal from theorder dated April 4, 2012, as amended April 4, 2012, and the order dated June 13, 2012,is vacated; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The Supreme Court erred in granting that branch of the cross motion of thedefendant Hoti Enterprises, L.P. (hereinafter Hoti), which was pursuant to CPLR 3211(a) (3) to dismiss the [*2]complaint insofar as assertedagainst it, made on the ground that the plaintiff lacked standing to commence this action(see e.g. Bank of N.Y. vSilverberg, 86 AD3d 274 [2011]). The Supreme Court further erred in denyingthat branch of the plaintiff's motion which was for summary judgment on the complaintinsofar as asserted against Hoti. Under the doctrine of judicial estoppel or inconsistentpositions, a party who assumes a certain position in a prior legal proceeding and securesa favorable judgment therein is precluded from assuming a contrary position in anotheraction simply because his or her interests have changed (see European Am. Bank vMiller, 265 AD2d 374 [1999]; Ford Motor Credit Co. v Colonial FundingCorp., 215 AD2d 435, 436 [1995]; Kimco of N.Y. v Devon, 163 AD2d 573,574-575 [1990]). The plaintiff established, prima facie, that Hoti was barred by thedoctrine of judicial estoppel from denying that the plaintiff had standing to commencethis action by virtue of the position Hoti took in a so-ordered stipulation entered in theUnited States Bankruptcy Court that, in connection with the subject note and mortgage,the plaintiff had "a perfected valid first priority secured claim" against it, that was "notsubject to defense, counterclaim or offset" (see Manhattan Ave. Dev. Corp. vMeit, 224 AD2d 191, 192 [1996]; Reynolds v C.I.R., 861 F2d 469, 475 [6thCir 1988]; see also Festinger vEdrich, 32 AD3d 412 [2006]). The plaintiff further established, prima facie, thatHoti was in default under the note and mortgage loan obligation (see e.g. Capital One, N.A. vBrooklyn Flatiron, LLC, 85 AD3d 837 [2011]). In opposition to this prima facieshowing, Hoti failed to raise a triable issue of fact (see generally Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]).
In light of our determination, the parties' remaining contentions have been renderedacademic.
Accordingly, the Supreme Court should have denied that branch of Hoti's crossmotion which was pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar asasserted against it, and should have granted that branch of the plaintiff's motion whichwas, in effect, for summary judgment on the complaint insofar as asserted against Hoti.Balkin, J.P., Chambers, Austin and Roman, JJ., concur.