| IndyMac Venture, LLC v Amus |
| 2018 NY Slip Op 05920 [164 AD3d 883] |
| August 29, 2018 |
| Appellate Division, Second Department |
[*1]
| IndyMac Venture, LLC, Respondent, v Todd Amus etal., Appellants, et al., Defendants. |
Annette G. Hasapidis, South Salem, NY, for appellants.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Marie Polito Hofsdalof counsel), for respondent.
In an action to foreclose a mortgage, the defendants Todd Amus and Nora Amus appeal froman order and judgment of foreclosure and sale (one paper) of the Supreme Court, WestchesterCounty (Francesca E. Connolly, J.), dated February 22, 2016. The order and judgment offoreclosure and sale, upon an order of the same court (Robert M. DiBella, J.) dated March 27,2015, granting the plaintiff's motion, inter alia, for summary judgment on the complaint insofaras asserted against those defendants, granted the plaintiff's motion to confirm a referee's reportand for a judgment of foreclosure and sale and directed the sale of the subject premises.
Ordered that the order and judgment of foreclosure and sale is affirmed, with costs.
The defendants Todd Amus and Nora Amus (hereinafter together the appellants) were theowners of the subject property, located in North Salem. They obtained a loan from IndyMacBank, FSB (hereinafter the original lender), to finance the construction of a 12,000-square-footextension to the property. On June 26, 2007, Todd Amus, as borrower, executed and delivered tothe original lender a number of documents in connection with the loan (hereinafter collectivelythe loan documents), including an adjustable rate note (hereinafter the note) in the amount of$2,730,000, which was amended and supplemented by a residential construction loan addendumamending note (hereinafter the note addendum), and a residential construction loan agreement.To secure the obligations under the loan documents, the appellants executed and delivered to theoriginal lender the subject construction loan mortgage (hereinafter the mortgage).
In 2012, the plaintiff commenced this action to foreclose the mortgage, alleging that theappellants had defaulted under the terms of the loan documents by, inter alia, failing to make therequired monthly interest payments, failing to complete the construction by November 25, 2009,as required, and failing to pay the property taxes as they came due, thereby allowing liens to befiled against the property. The appellants filed a verified answer with affirmative defenses,set-offs, and counterclaims. In a prior order, the Supreme Court granted all branches of a motionby the plaintiff pursuant to CPLR 3211 to dismiss the affirmative defenses, set-offs, andcounterclaims, except for that branch which was to dismiss the eighth affirmative defense,alleging that the appellants were not in default.
[*2] Subsequently, the plaintiff moved, inter alia, for summary judgment on the complaintinsofar as asserted against the appellants and dismissing their eighth affirmative defense, and toappoint a referee to compute the amount due. The appellants opposed the motion. In an orderdated March 27, 2015, the Supreme Court granted the motion. Thereafter, the court granted theplaintiff's subsequent motion, inter alia, for a judgment of foreclosure and sale.
"Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiffestablishes its prima facie case through the production of the mortgage, the unpaid note, andevidence of default" (Plaza Equities,LLC v Lamberti, 118 AD3d 688, 689 [2014]; see Deutsche Bank Natl. Trust Co. v Iarrobino, 159 AD3d 670[2018]; Deutsche Bank Natl. Trust Co. vBrewton, 142 AD3d 683, 684 [2016]; Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d 1001, 1002[2015]). At issue on this appeal is whether the plaintiff established the appellants' default inmeeting their obligations under the terms of the loan documents.
The appellants contend, first, that they did not default in making interest payments on thedates alleged, because pursuant to the terms of the loan documents, monthly interest paymentswere not due to begin until January 1, 2010, a month after the date by which construction was tohave been completed, i.e., after the "Construction Period." There is no merit to thiscontention.
"[A] written agreement that is complete, clear and unambiguous on its face must be enforcedaccording to the plain meaning of its terms" (Greenfield v Philles Records, 98 NY2d 562,569 [2002]; see G3-Purves St., LLC vThomson Purves, LLC, 101 AD3d 37, 40 [2012]; Etzion v Etzion, 84 AD3d 1015, 1016 [2011]). "Where the terms ofan agreement are unambiguous, interpretation is a question of law for the court" (G3-PurvesSt., LLC v Thomson Purves, LLC, 101 AD3d at 40; see Aivaliotis v Continental Broker-Dealer Corp., 30 AD3d 446,447 [2006]). "A written contract will be read as a whole, and every part will be interpreted withreference to the whole; and if possible it will be so interpreted as to give effect to its generalpurpose" (Matter of Westmoreland Coal Co. v Entech, Inc., 100 NY2d 352, 358 [2003][internal quotation marks omitted]; seeBeal Sav. Bank v Sommer, 8 NY3d 318, 324-325 [2007]; CNR Healthcare Network, Inc. v 86Lefferts Corp., 59 AD3d 486, 489 [2009]). It is important not to distort the meaning of awriting by placing "excessive emphasis . . . upon particular words or phrases" (South Rd. Assoc., LLC v International Bus.Machs. Corp., 4 NY3d 272, 277 [2005]; see Bailey v Fish & Neave, 8 NY3d 523, 528 [2007];Matter of Westmoreland Coal Co. v Entech, Inc., 100 NY2d at 358; Burlington Ins. Co. v Utica First Ins.Co., 71 AD3d 712, 713 [2010]; CNR Healthcare Network, Inc. v 86 LeffertsCorp., 59 AD3d at 489).
Here, pursuant to the note, Todd Amus agreed that he would "pay interest beginning on thePermanent Loan Commencement Date," i.e., January 1, 2010, and would "make these paymentsevery month until [he had] paid all the principal and interest and any other charges" he mightowe under the note. However, Todd Amus also executed the note addendum, which wasincorporated into and "deemed to amend and supplement the Note," and in which he agreed to itsterms "[n]otwithstanding anything to the contrary set forth in the Note." The note addendumprovided in section 2(A), entitled "Interest During the Construction Period," that during theConstruction Period, Todd Amus would "pay interest . . . on the amount advanced,"and that he would "make payments each month in the amount of the interest accrued for the priormonth on or before the first (1st) day of each month." In section 5 of the note addendum, entitled"EVENTS OF DEFAULT AND ACCELERATION OF THE DEBT," Todd Amus agreed thatthe note holder could accelerate the debt and "declare the entire unpaid principal balance andaccrued interest due and payable . . . if any payment of interest is not made whendue during the Construction Period."
Thus, "according to the plain meaning" of the above-quoted terms (Greenfield v PhillesRecords, 98 NY2d at 569), Todd Amus, as borrower, agreed that he was obligated to makeinterest payments to the note holder during the Construction Period, as interest accrued on themoney advanced to him, and that the failure to make such payments when due would be deemeda default, upon which the note holder would be authorized to accelerate the debt.
Contrary to the appellants' contention, the plaintiff submitted evidence establishing, primafacie, that the appellants defaulted in making their monthly interest payments. In opposition, theappellants failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]; [*3]Zuckerman v City of New York, 49NY2d 557, 562 [1980]).
The appellants' remaining contention is improperly raised for the first time on appeal.
Accordingly, we agree with the Supreme Court's determination to award the plaintiffsummary judgment on the complaint insofar as asserted against the appellants and dismissingtheir eighth affirmative defense. Rivera, J.P., Hinds-Radix, LaSalle and Brathwaite Nelson, JJ.,concur.