Opinion
No. 2023-00277 Index No. 504923/22
11-06-2024
Provident Bank, etc., respondent, v. Maze Condos, LLC, et al., appellants, et al., defendants.
Rosenberg & Steinmetz, P.C., Valley Stream, NY (Leonard Gekhman and Rachelle Rosenberg of counsel), for appellants. Getler, Gomes & Sutton, P.C., Suffern, NY (Janine A. Getler and Richard Sutton of counsel), for respondent.
Rosenberg & Steinmetz, P.C., Valley Stream, NY (Leonard Gekhman and Rachelle Rosenberg of counsel), for appellants.
Getler, Gomes & Sutton, P.C., Suffern, NY (Janine A. Getler and Richard Sutton of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, HELEN VOUTSINAS, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Maze Condos, LLC, Muze Condos, LLC, GW Development of NY, LLC, Esther Leah Glauber, and Zelig Weiss appeal from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated November 15, 2022. The order denied those defendants' motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the amended complaint insofar as asserted against them and to cancel a notice of pendency.
ORDERED that the order is affirmed, with costs.
In February 2022, the plaintiff commenced this action against the defendants Maze Condos, LLC, Muze Condos, LLC, GW Development of NY, LLC, Esther Leah Glauber, and Zelig Weiss (hereinafter collectively the defendants), among others, to foreclose a consolidated mortgage on real property located in Brooklyn. The defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the amended complaint insofar as asserted against them and to cancel a notice of pendency. In an order dated November 15, 2022, the Supreme Court denied the defendants' motion. The defendants appeal.
On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see HSBC Bank USA, N.A. v Alexander, 221 A.D.3d 865, 868). Here, the amended complaint was facially adequate to state a cause of action to foreclose a mortgage. "In addition, '[t]he performance or occurrence of a condition precedent in a contract need not be pleaded' (CPLR 3015[a]), and therefore the plaintiff was not required to plead compliance with [the notice of default] provisions of the mortgage document" (Federal Natl. Mtge. Assn. v Suarez, 189 A.D.3d 782, 783).
"To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (HSBC Bank USA, N.A. v Alexander, 221 A.D.3d at 867 [internal quotation marks omitted]). "To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable" (U.S. Bank N.A. v Kahn Prop. Owner, LLC, 206 A.D.3d 855, 857 [internal quotation marks omitted]). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case" (id. [internal quotation marks omitted]). Here, the one-page financial statement of unknown origin submitted by the defendants in support of their motion does not constitute documentary evidence within the intendment of CPLR 3211(a)(1) (see Pergament v Government Empls. Ins. Co. ["GEICO"], 225 A.D.3d 799, 801; Fontanetta v John Doe I, 73 A.D.3d 78, 87).
Since the defendants failed to establish entitlement to dismissal of the amended complaint insofar as asserted against them, they failed to establish a ground for mandatory cancellation of the notice of pendency (see CPLR 6514[a]; Deutsche Bank Natl. Trust Co. v Kuldip, 108 A.D.3d 686, 687). The Supreme Court providently exercised its discretion in declining to cancel the notice of pendency on the ground that the plaintiff did not commence the action in good faith (see CPLR 6514[b]; Vanderbilt Brookland, LLC v Vanderbilt Myrtle, Inc., 147 A.D.3d 1106, 1111).
Accordingly, the Supreme Court properly denied the defendants' motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the amended complaint insofar as asserted against them and to cancel the notice of pendency.
BRATHWAITE NELSON, J.P., CHAMBERS, VOUTSINAS and LOVE, JJ., concur.