Opinion
Index No. 802303/2021 Motion Sequence No. 1
01-18-2022
CADLEROCK JOINT VENTURE, L.P., Plaintiff(s) v. CARL LEWIS Defendant(s),
Unpublished Opinion
DECISION / ORDER
WILMA GUZMAN JUDGE
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for summary judgment in lieu of complaint.
Papers Numbered
Notice of Motion, Affirmation, Affidavit, and
Exhibits in Support thereto Annexed................................. 1
Affirmation/Affidavit of Service................... 2
Affirmation in Opposition and Exhibits Annexed.................. 3
Replying Affirmation.......................................................... 4
Upon the foregoing papers, the Decision/Order on this motion is as follows:
Upon deliberation of the application duly made by the Plaintiff, CADLEROCK JOINT VENTURE, L.P. (hereinafter referred to as "Plaintiff) by NOTICE OF MOTION, and all the papers in connection therewithin, for an Order, pursuant to CPLR § 3213 and CPLR § 5014, granting Plaintiff summary judgment in lieu of complaint, and opposition having been submitted thereto, the motion is heretofore denied.
Plaintiff is seeking an Order pursuant to CPLR § 3213 and CPLR § 5014, granting summary judgment in lieu of complaint in favor of Plaintiff and issuing a new judgment against Defendant, CARL LEWIS (hereinafter referred to as "Defendant"), together with the costs and disbursements of this action, On April 23, 2001, a Deficiency Judgment was issued by the Hon. Jerry L. Crispino of the Supreme Court, Bronx County in an actin entitled "Cadlerock Joint Venture, L.P. v. Carl Lewis under Index # 22775/98. The Deficiency Judgment was entered on June 13, 2001 in favor of Plaintiff as against Defendant in the amount of $63,788.78 pursuant to foreclosure of a mortgage loan and the Referee's sale of the mortgaged property. Defendant was ordered to pay the original judgment amount plus interest by way of an income execution.
Plaintiff claims that the Defendant has made payments which were applied to principal and statutory interest. As of February of 2021, the Defendant has paid a total payment in the sum of $103,662.37. However, Plaintiff claims that the Defendant still owes on the Judgment the principal sum of $30,213.51, together with statutory interest at the legal rate of 9 percent per annum from February 2, 2021 and is seeking to obtain a new judgment for the remaining balance.
In an action as the instant proceeding where the relief sought is the payment of money due and owing based upon Judgment, CPLR 3213 permits summary judgment in lieu of a complaint. However, the standard for granting such motions is the same as that set forth pursuant to CPLR 3212. which provides that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law to direct judgment in favor of any party." Banco Popular North America v. Victory Taxi Management. Inc., 1 N.Y.3d 381, 382 (2004). Plaintiff has failed to submit proof to "establish sufficiently to warrant the court as a matter of law" entitlement to direct judgment. More specifically, the Judgment which was entered over twenty (20) years ago was a "Deficiency Judgment," as a result of a foreclosure proceeding. Deficiency Judgments are covered under RPAPL Section 1371 provides:
"(1). If a person who is liable to the plaintiff for the payment of the debt secured by the mortgage is made a defendant in the action, and has appeared or has been personally served with the summons, the final judgment may award payment by him of the whole residue, or so much thereof as the court may determine to be just and equitable, of the debt remaining unsatisfied, after a sale of the mortgaged property and the application of the proceeds, pursuant to the directions contained in such judgment, the amount thereof to be determined by the court as herein provided."
(2) ...Upon such motion the court, whether or not the respondent appears, shall determine, upon affidavit or otherwise as it shall direct, the fair and reasonable market value of the mortgaged premises as of the date such premises were bid in at auction or such nearest earlier date as there shall have been any market value thereof and shall make an order directing the entry of a deficiency judgment. Such deficiency judgment shall be for an amount equal to the sum of the amount owing by the party liable as determined by the judgment with interest, plus the amount owing on all prior liens and encumbrances with interest, plus costs and disbursements of the action including the referee's fee and disbursements, less the market value as determined by the court or the sale price of the property whichever shall be the higher."
RPAPL 1371(2) permits the mortgagee in a mortgage foreclosure action to recover a deficiency judgment for the difference between the amount of indebtedness on the mortgage and either the auction price at the foreclosure sale or the fair market value of the property, whichever is higher (see. Columbus Realty Inv. Corp. v. Gray, 240 A.D.2d 529_(2nd Dept. 1997). The predecessor to RPAPL was Section 1083 a of the Civil Practice Act and applied only where the mortgagee commenced an action upon a debt secured by a mortgage or sought a deficiency judgment in a foreclosure suit. Kress v. Central Trust Company. Rochester. 246 App. Div. 76, 283 N.Y.S. 467; affirmed 272 N.Y. 629, 5 N.E.2d 365 (1936). The legislation purpose was not designed to deprive a creditor of his right to recover his debt but merely to limit his remedy. See. also. Matter of Burrows' Estate. 283 N.Y. 540 (1940). "The idea was that the mortgagor should have an opportunity to contest entry of a deficiency judgment which was not justified." Berkman v. Silverstein. 245 App.Div. 891 (3d Dept. 1935). In Cicero v. Aspen Hills II, LLC, 85 A.D.3d 1411 (2011) the Appellate Division. Third Department, restated that a deficiency judgment may be recovered "for the difference between the amount of indebtedness on the mortgage and either the auction price at the foreclosure sale or the fair market value of the property, whichever is higher..." On a motion for a deficiency judgment, the court must establish and credit the debtor with "the fair and reasonable market value of the mortgaged premises", and not merely with whatever sum might have been bid at the sale.
In order to demonstrate prima facie entitlement to a deficiency judgment, a plaintiff must prove, by competent testimony, the market value of the subject property on the day of bid/sale, with the plaintiffs 'upset price' being irrelevant, even where it exceeded the amounts due pursuant to the judgment of foreclosure. Ramapo Realty. LLC v. 1236 Rogers Ave.. LLC, 148 A.D.3d 738 (2nd Dept. 2017). establishing the property value at the time of the foreclosure sale. It is the court's task to determine market value.
The Deficiency Judgment is specific as to the amount awarded to the plaintiff. The amount awarded to the Plaintiff pursuant to the Deficiency Judgment was in "the sum of $61,738.76 representing the court's determined amount to be the "deficiency" and legal interest from January 31, 2001 in the sum of $2050.02 for the total sum of $63,788.78 and plaintiff have execution therefor." To-date, the Defendant has paid a total payment in the sum of $103,662.37. The facts in the instant matter show that the original debt reflected in the original judgment order was $63,788.78. Both parties agree that the monies so far paid within the statutory 20 years under the "Deficiency Judgment" amounts to $103,662.37, which calculates to 162.51% of the original debt owed. The analysis of the balance of equities indicates that defendant has met his obligation to pay the owed debt upon the execution of a garnishment. The remaining amount of $30,213.51 remaining unpaid would result in the total amount of debt collected of $133,875.88. which indicates that if Plaintiff collects the remaining balance, they would be "excessively benefitting" from the original Deficiency Judgment. Clearly, a Deficiency Judgment is not meant to be a "windfall" for the party who has obtained the judgment.
CPLR §5240 allows this Court "at any time, on its own initiative or the motion of any interested person, and upon such notice as it may require, [to] make an order denying, limiting. conditioning, regulating, extending or modifying the use of any enforcement procedure." Defendant argues that his payments are not voluntary but rather due to a garnishment on his salary. The Appellate Division, First Department in the case of Tookes v. New York City Parking Violations Bureau, 243 A.D.2d 265 (1997) stated: "Respondent is correct that the payment plan, because voluntary, cannot be considered a garnishment of petitioner's benefits and there is no evidence in the record that any garnishment was being sought or made. Nevertheless. we find no reason to disturb the IAS Court's appropriate exercise of discretion under CPLR 5240 to enjoin any future attempt to garnish petitioner's disability payments." It should be noted that the Income Execution bears incorrect information as to where the judgment was docketed. The Income Execution states the judgment was docketed "in the Supreme Court, Queens County" when, in actuality the judgment is a "Deficiency Judgment" and was docketed in Supreme Court, Bronx County. As such, this Court does have the discretion pursuant to CPLR 5240 to enjoin the Plaintiff from any further garnishment upon the Income Execution served upon the New York City Housing Authority with regards to the Defendant.
Defendant argues that the income execution should be modify pursuant to CPLR 523 l(i). However, defendant did not move for such a relief, and this court will not address the issue at this time.
Therefore, this Court denies plaintiffs application seeking an Order pursuant to CPLR 3213 and CPLR 5014 and enjoins Plaintiff from any and/all further garnishment, as a result of the Income Execution served upon the New York City Housing Authority with regards to the Defendant.
Accordingly, it is hereby, ORDERED AND ADJUDGED that Plaintiff, CADLEROCK JOINT VENTURE, L.P/s, motion for summary judgment in lieu of the complaint pursuant to CPLR 3213 is hereby denied. It is further, ORDERED AND ADJUDGED that Plaintiff, CADLEROCK JOINT VENTURE, L.P.'s, motion for summary judgment seeking to renew a judgment pursuant to CPLR 5014 is hereby denied. It is further, ORDERED AND ADJUDGED that Plaintiff, CADLEROCK JOLNT VENTURE- L.P.'s, enjoined from any and/all further garnishment, as a result of the Income Execution served upon the New York City Housing Authority with regards to the Defendant, Carl Lewis. It is further, ORDERED AND ADJUDGED that Plaintiff, CADLEROCK JOINT VENTURE, L.P., shall serve, a copy of this Order with Notice of Entry, upon the Defendant herein thirty (30) days from the date of entry.
This constitutes the Decision and Order of the Court.