Opinion
Index No. 511156/2023 Motion Seq. 3
01-11-2024
ANDREA CAPUTO, Plaintiff, v. 6901 LLC Defendant,
Unpublished Opinion
DECISION AND ORDER
LEON RUGHELSMAN, J.
The defendant has moved pursuant to: CPLR §2221 seeking to reargue a decision and order dated September 22, 2023 which granted the plaintiff summary judgement it is entitled to attorney's fees pursuant to the mortgage. The plaintiff opposes the motion. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination.
The facts have been adequately presented in the prior decision and need not be repeated here. The court granted summary judgement holding that pursuant to Article 12 of the mortgage Caputo was entitled to be reimbursed for attorney's fees.
As noted in the prior decision, Article 12 of the consolidated mortgage states that "if any action or proceeding be commenced (except an action to foreclose said mortgage of to collect the debt secured thereby), to which action or proceeding the party of the first part is made a party, or in which it becomes necessary to defend or uphold the lien of said mortgage, all sums paid by the party of the. first part, for the expense of any litigation to prosecute or defend the rights and lien created by said mortgage (including reasonable counsel fees), shall be paid by the party of the second part..." (see, Consolidated Mortgage, ¶12 [NYSCEF Doc. No. 2]). The court held that clause is triggered in one of two scenarios, first where Caputo is a party, regardless of the nature of that lawsuit, and second in any action where it is necessary to defend and uphold the lien. The court reasoned that the disjunctive 'of' separated the two clauses creating two distinct situations where Caputo would be entitled to attorney's fees. The court noted that "there is no reasonable way to read that paragraph as encompassing one scenario, namely only actions seeking to uphold the lien. If that were true then the word 'or' serves no purpose and really makes no sense" (see, Decision and Order, page 3 [NYSCEF Doc. No. 44]). The defendant has now moved seeking to reargue that determination asserting that the plain reading of the clause contemplates only one scenario, namely where an action is brought concerning the mortgage lien itself.
In order for the clause to contemplate one scenario, the word 'or' cannot be used and a disjunctive but rather to introduce a phrase that states, with more precision, something already stated. A statement that "I arrived quickly, or at least more quickly than last time" is an example where the word 'or' is not used as a disjunctive or even as a conjunctive but rather refines what was just stated. With that understanding the clause would only encompass one scenario, namely where the mortgagee seeks recovery for legal fees defending or upholding the lien Of the mortgage. This interpretation is supported by the fact that the. clause- specifically states where, "it becomes necessary to defend or uphold the lien of said mortgage" then all sums expended "to prosecute or defend the rights and lien created by said mortgage" may be recovered (id). If the clause created two distinct scenarios and the first scenario includes any lawsuit to which Caputo is a party, for any reason, then the; language about the rights and lien created by the mortgage is superfluous. Indeed, if Caputo would be entitled to any recovery of legal fees no matter the nature of the. lawsuit, then adding that the language specifying the rights and lien created by the mortgage is unintelligible. further, it cannot seriously be argued that a lawsuit that Caputo misused the funds she received as rental payments has anything to do with her rights pursuant to the mortgage. The prior lawsuit never questioned her rights under the mortgage.. Rather, the lawsuit -only raised issues concerning her duties once she received those payments and whether she fulfilled her obligations pursuant to the mortgage.
In truth, the language of article 12 is obscure and surely questions of fact have been raised as to its precise reach. Upon further consideration it cannot be said there are no questions of fact that Caputo is entitled to recovery attorney's fees in a lawsuit that did not involve the rights or lien of the mortgage. Therefore, the motion seeking reargument is granted. Upon reargument the motion seeking summary judgement is denied and any hearing concerning damages is hereby vacated. The exact interpretation of that clause must be presented to a trier of fact
So ordered.