| Reale v Tsoukas |
| 2017 NY Slip Op 00206 [146 AD3d 833] |
| January 11, 2017 |
| Appellate Division, Second Department |
[*1]
| Robert E. Reale, Appellant, v Gregory Tsoukaset al., Respondents, et al., Defendant. |
Pearce Law Firm, New York, NY (Jessica M. Pearce and Donald Pearce of counsel),for appellant.
Fidelity National Law Group, New York, NY (Hilary R. Levine of counsel), forrespondents.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by his brief,from so much of an order of the Supreme Court, Richmond County (Dollard, J.), datedSeptember 23, 2014, as granted the motion of the defendants Gregory Tsoukas,Panayiotis Tsoukas, and Everbank for summary judgment dismissing the complaintinsofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
This is an action to foreclose a mortgage encumbering two parcels of real property inStaten Island, one located on Richmond Avenue (hereinafter the Richmond property), theother on Nicolosi Loop (hereinafter the Nicolosi property). The subject mortgage, aso-called "spreader mortgage," secured a loan in the amount of $110,000, given by theplaintiff to the then owner of both properties, the defendant Lori Martinelli, also knownas Lori Menake (hereinafter Martinelli). This foreclosure action relates solely to theRichmond property, which is currently owned by the defendants Gregory Tsoukas andPanayiotis Tsoukas (hereinafter together Tsoukas).
On March 11, 2008, Martinelli refinanced the Nicolosi property for the sum of$1,500,000. The plaintiff received a total of $1,381,429.26 from the refinancing andexecuted satisfactions of mortgage pertaining to each of the two mortgages of recordencumbering the Nicolosi property at that time, including the subject mortgage. Thus, bya satisfaction of mortgage dated March 12, 2008 (hereinafter the satisfaction), theplaintiff "certif[ied]" that the subject mortgage had been paid and consented that it bedischarged of record. However, the satisfaction further stated that it was "given only tothe extent that the Mortgage affects [the Nicolosi property]." The plaintiff now seeks toforeclose the subject mortgage, which he contends was not satisfied by the Nicolosiproperty refinance, or anytime before or since, with respect to the Richmondproperty.
Relying on the satisfaction and other documents from the refinance closing and thesubsequent closing on the sale of the Richmond property, Tsoukas and the defendantEverbank (hereinafter collectively the defendants) moved for summary judgmentdismissing the complaint [*2]insofar as asserted againstthem on the ground that the mortgage the plaintiff sought to foreclose had been satisfied.The Supreme Court, inter alia, granted the defendants' motion.
Contrary to the plaintiff's contention, the evidence submitted by the defendants insupport of their motion was sufficient to establish, prima facie, that the debt underlyingthe subject mortgage was paid in full at the 2008 refinance of the Nicolosi property(see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). A plaintiffcannot foreclose on a mortgage if the debt it secures has been satisfied (see Hellas Fos, Inc. v Russo,84 AD3d 1166, 1167 [2011]).
In opposition, the plaintiff submitted his own affidavit and that of a nonparty whohad represented him at the refinance, along with a spreadsheet allegedly showing howthe monies the plaintiff received at the refinance were used to pay various loans owed byMartinelli, but not the debt underlying the subject mortgage. These submissions, and theplaintiff's conclusory and speculative allegations that the documents evidencing fullpayment of the subject mortgage were not reliable, were insufficient to defeat summaryjudgment (see Zuckerman v City of New York, 49 NY2d at 562; Matter of Agai v DiontechConsulting, Inc., 138 AD3d 736, 737 [2016]; Kornreich v Young Men's &Young Women's Hebrew Assn. of Boro Park, Inc., 132 AD3d 815, 816 [2015];Zhu v Natale, 131 AD3d607, 608 [2015]; Patsis vNicolia, 120 AD3d 1326, 1328 [2014]; Hellas Fos, Inc. v Russo, 84AD3d at 1167).
Contrary to the plaintiff's contention, the language in the satisfaction stating that itwas given "only to the extent that the Mortgage affects [the Nicolosi property]" could notprevent the satisfaction from applying to the Richmond property as well, insofar as theevidence showed that the full $110,000 of the subject mortgage was paid to the plaintiff."A mortgage is merely security for a debt or other obligation and cannot existindependently of the debt or obligation" (FGB Realty Advisors v Parisi, 265AD2d 297, 298 [1999]; seeDeutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 911 [2013]; Bank of N.Y. v Silverberg, 86AD3d 274, 280 [2011]). Once the underlying debt was fully paid, the subjectmortgage could not continue to exist on either property.
There is no merit to the plaintiff's contention that the motion for summary judgmentwas premature. "A party who seeks a finding that a summary judgment motion ispremature is required to put forth some evidentiary basis to suggest that discovery mightlead to relevant evidence or that the facts essential to justify opposition to the motionwere exclusively within the knowledge and control of the movant" (Vikram Constr., Inc. v EverestNatl. Ins. Co., 139 AD3d 720, 721 [2016]; see CPLR 3212 [f]; Joon Mgt. One Corp. v Town ofRamapo, 142 AD3d 587, 589 [2016]). The "mere hope or speculation thatevidence sufficient to defeat a motion for summary judgment may be uncovered duringthe discovery process is insufficient to deny the motion" (Cajas-Romero v Ward, 106AD3d 850, 852 [2013] [internal quotation marks omitted]; see Rungoo v Leary, 110AD3d 781, 783 [2013];Anzel v Pistorino, 105 AD3d 784, 786 [2013]). Here, the plaintiff failed to meetthis burden.
Accordingly, the Supreme Court properly granted the defendants' motion forsummary judgment. Leventhal, J.P., Chambers, Austin and LaSalle, JJ., concur.