| Katz v Miller |
| 2014 NY Slip Op 05957 [120 AD3d 768] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| Leslie Katz et al., Appellants, v JeffersonMiller et al., Defendants, and John Toppin, Also Known as John W. Toppin, et al.,Respondents. |
Isabel L. Becker, LLC, New City, N.Y. (James Stern of counsel), for appellants.
Roberta Chambers, Queens Village, N.Y., for respondents.
In an action to foreclose a mortgage, the plaintiffs appeal from so much of an orderof the Supreme Court, Queens County (Greco, Jr., J.), entered July 30, 2013, as deniedthose branches of their motion which were for summary judgment on the complaintinsofar as asserted against the defendants John Toppin, also known as John W. Toppin,and Pearline Toppin, striking their affirmative defenses, and dismissing theircounterclaims.
Ordered that the order is modified, on the law, by deleting the provisions thereofdenying those branches of the plaintiffs' motion which were for summary judgmentstriking the first through twelfth affirmative defenses and dismissing the second and thirdcounterclaims, and substituting therefor a provision granting those branches of themotion; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements.
In an action to foreclose a mortgage, a plaintiff meets its initial burden by producingthe mortgage and the unpaid note, and evidence of default (see W & H Equities LLC vOdums, 113 AD3d 840 [2014]; Wells Fargo Bank, N.A. v Webster, 61 AD3d 856 [2009]).Here, the plaintiffs made a prima facie showing of entitlement to judgment as a matter oflaw against the defendants John Toppin, also known as John W. Toppin, and PearlineToppin (hereinafter together the Toppin defendants) by submitting the note executed byJefferson Miller, the guaranty of that note executed by the Toppin defendants and themortgage securing that guaranty, as well as evidence of default (see Baron Assoc., LLC v GarciaGroup Enters., Inc., 96 AD3d 793 [2012]; cf. W & H Equities LLC v Odums, 113 AD3d 840[2014]). However, in opposition, the Toppin defendants raised triable issues of fact as towhether the guaranty, mortgage, and related documents that they executed wereunenforceable since they were procured by duress or were unconscionable (see Lawrence v GraubardMiller, 11 NY3d 588, 595 [2008]; Adams v Irving Natl. Bank of N.Y.,116 NY 606, 611-612 [1889]; Call v Ellenville Natl. Bank, 5 AD3d 521, 525 [2004];Triad Distribs. v Conde, 56 AD2d 648 [1977]). While the documents executed bythe Toppin defendants included an estoppel certificate containing a waiver of anydefenses, offsets, or counterclaims, the triable issues of fact concerning duress andunconscionability extend to the enforceability of that waiver (see Hammelburger vFoursome Inn Corp., 54 NY2d 580, 593-594 [1981]; JRK Franklin, LLC v 164 E. 87thSt. LLC, 27 AD3d 392, 393 [2006]). Moreover, the plaintiffs did not establish,prima facie, that the Toppin defendants ratified the guaranty and mortgage (see Malek v Malek, 107 AD3d425 [2013]; Arrow v Arrow, 133 AD2d 960 [1987]). Accordingly, theSupreme Court properly [*2]denied those branches of theplaintiffs' motion which were for summary judgment on the complaint against the Toppindefendants and striking their thirteenth affirmative defense, misdesignated as thefourteenth affirmative defense, which alleged that the mortgage was unenforceableagainst them since it was secured by duress.
However, the Supreme Court should have granted those branches of the plaintiffs'motion which were for summary judgment striking the first through twelfth affirmativedefenses. The second and eleventh affirmative defenses were not substantiated withfactual allegations, and were conclusory in nature (see CPLR 3013, 3018 [b]; Becher v Feller, 64 AD3d672, 677 [2009]; CohenFashion Opt., Inc. v V & M Opt., Inc., 51 AD3d 619 [2008]). The plaintiffs established theirprima facie entitlement to judgment as a matter of law striking the first, third throughtenth, and twelfth affirmative defenses, and the Toppin defendants failed to raise a triableissue of fact in opposition (see Zuckerman v City of New York, 49 NY2d 557,562 [1980]).
The Supreme Court should also have granted those branches of the plaintiffs' motionwhich were for summary judgment dismissing the second and third counterclaims, whichwere in the nature of defenses to the complaint and did not assert facts upon whichaffirmative relief may be granted (see CPLR 3019 [a]; P.J.P. Mech. Corp. v Commerce& Indus. Ins. Co., 65 AD3d 195, 199-200 [2009]). The Supreme Courtproperly denied that branch of the plaintiffs' motion which was for summary judgmentdismissing the first counterclaim (see Real Property Law§ 282).
We decline the Toppin defendants' request to impose sanctions upon the plaintiffs ortheir attorney (see generally 22 NYCRR 130-1.1). Rivera, J.P., Sgroi, Cohen andBarros, JJ., concur.