Opinion
2020-05487, 2023-06251 Index No. 504869/14
08-16-2023
CHRISTIANA TRUST, etc., respondent, v. Anthony CORBIN, et al., defendants, Hancock Realty II, Inc., appellant.
The Rosenfeld Law Office, Lawrence, NY (Avinoam Rosenfeld of counsel), for appellant. Steve Okenwa, P.C., Brooklyn, NY, for respondent.
The Rosenfeld Law Office, Lawrence, NY (Avinoam Rosenfeld of counsel), for appellant.
Steve Okenwa, P.C., Brooklyn, NY, for respondent.
MARK C. DILLON, J.P., JOSEPH J. MALTESE, LARA J. GENOVESI, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Hancock Realty II, Inc., appeals from two orders of the Supreme Court, Kings County (Noach Dear, J.), both dated February 18, 2020. The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were (1) for leave to reargue its opposition to the cross-motion of the defendant Hancock Realty II, Inc., pursuant to CPLR 3025(b) for leave to amend its answer, (2), in effect, for leave to reargue its opposition to that branch of that defendant's separate cross-motion which was to dismiss the complaint insofar as asserted against it as time-barred, and (3) for leave to reargue those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, which cross-motions and prior motion had been determined in an order of the same court (Gloria M. Dabiri, J.) dated November 3, 2016, and, upon reargument, in effect, vacated so much of the order dated November 3, 2016, as granted that defendant's cross-motion pursuant to CPLR 3025(b) for leave to amend its answer and that branch of that defendant's separate cross-motion which was to dismiss the complaint insofar as asserted against it as time-barred and denied those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, and thereupon denied that defendant's cross-motion pursuant to CPLR 3025(b) for leave to amend its answer and that branch of that defendant's separate cross-motion which was to dismiss the complaint insofar as asserted against it as time-barred and granted those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference. The second order, insofar as appealed from, in effect, granted the same relief to the plaintiff and appointed a referee to compute the amount due to the plaintiff.
ORDERED that the first order dated February 18, 2020, is modified, on the law and in the exercise of discretion, by deleting the provisions thereof granting those branches of the plaintiff's motion which were for leave to reargue its opposition to the cross-motion of the defendant Hancock Realty II, Inc., pursuant to CPLR 3025(b) for leave to amend its answer and those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, and, upon reargument, in effect, vacating so much of the order dated November 3, 2016, as granted that defendant's cross-motion pursuant to CPLR 3025(b) for leave to amend its answer and denied those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, and thereupon denying that cross-motion and granting those branches of the prior motion, and substituting therefor provisions denying those branches of the plaintiff's motion which were for leave to reargue its opposition to the cross-motion of that defendant pursuant to CPLR 3025(b) for leave to amend its answer and those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference; as so modified, the first order dated February 18, 2020, is affirmed insofar as appealed from, so much of the order dated November 3, 2016, as granted the cross-motion of the defendant Hancock Realty II, Inc., pursuant to CPLR 3025(b) for leave to amend its answer and denied those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference is reinstated, and so much of the second order dated February 18, 2020, as, in effect, granted those branches of the plaintiff's motion which were for leave to reargue its opposition to the cross-motion of the defendant Hancock Realty II, Inc., pursuant to CPLR 3025(b) for leave to amend its answer and for leave to reargue those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, and, upon reargument, in effect, vacated so much of the order dated November 3, 2016, as granted that defendant's cross-motion pursuant to CPLR 3025(b) for leave to amend its answer and denied those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, and thereupon denied that cross-motion and granted those branches of the prior motion and appointed a referee to compute the amount due to the plaintiff is vacated; and it is further, ORDERED that the appeal from so much of the second order dated February 18, 2020, as, in effect, granted those branches of the plaintiff's motion which were for leave to reargue its opposition to the cross-motion of the defendant Hancock Realty II, Inc., pursuant to CPLR 3025(b) for leave to amend its answer and those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, and, upon reargument, in effect, vacated so much of the order dated November 3, 2016, as granted that defendant's cross-motion pursuant to CPLR 3025(b) for leave to amend its answer and denied those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, and thereupon denied that cross-motion and granted those branches of the prior motion and appointed a referee to compute the amount due to the plaintiff is dismissed as academic in light of our determination on the appeal from the first order dated February 18, 2020; and it is further,
ORDERED that the second order dated February 18, 2020, is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the defendant Hancock Realty II, Inc.
In May 2014, the plaintiff commenced this action against the defendant Hancock Realty II, Inc. (hereinafter the defendant), among others, to foreclose a mortgage encumbering certain real property located in Brooklyn. In June 2014, the defendant interposed an answer.
The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. The defendant cross-moved pursuant to CPLR 3025(b) for leave to amend its answer to assert an affirmative defense based on the statute of limitations. The defendant separately cross-moved, among other things, to dismiss the complaint insofar as asserted against it as time-barred. By order dated November 3, 2016, the Supreme Court, inter alia, granted the defendant's cross-motion, granted that branch of the defendant's separate cross-motion, and denied those branches of the plaintiff's motion.
The plaintiff subsequently moved, inter alia for leave to reargue its opposition to the defendant's cross-motion for leave to amend its answer, in effect, for leave to reargue its opposition to that branch of the defendant's separate cross-motion which was to dismiss the complaint insofar as asserted against it as time-barred, and for leave to reargue those branches of its prior motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In an order dated February 18, 2020, the Supreme Court, among other things, upon reargument, denied the defendant's cross-motion for leave to amend its answer, denied that branch of the defendant's separate cross-motion which was to dismiss the complaint insofar as asserted against it as time-barred, and granted those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In a second order, also dated February 18, 2020, the court, inter alia, granted the same relief to the plaintiff and appointed a referee to compute the amount due to the plaintiff. The defendant appeals.
A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" ( CPLR 2221[d][2] ).
The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to reargue its opposition to the defendant's cross-motion for leave to amend its answer, and, upon reargument, denying that cross-motion. " ‘In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend or supplement a pleading are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit’ " ( Citimortgage, Inc. v. Rogers, 203 A.D.3d 1125, 1126, 163 N.Y.S.3d 452, quoting U.S. Bank N.A. v. Singer, 192 A.D.3d 1182, 1185, 145 N.Y.S.3d 537 ; see Onewest Bank, FSB v. N & R Family Trust, 200 A.D.3d 902, 155 N.Y.S.3d 344 ; Bridgehampton Ntl. Bank v. D & G Partners, L.P., 186 A.D.3d 1310, 1311, 131 N.Y.S.3d 347 ). The burden of establishing prejudice is on the party opposing the amendment (see Kimso Apts., LLC v. Gandhi, 24 N.Y.3d 403, 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 ; GMAC Mtge., LLC v. Coombs, 191 A.D.3d 37, 49, 136 N.Y.S.3d 439 ). "In exercising its discretion, the court should consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated [and] whether a reasonable excuse for the delay was offered" ( Ridgewood Sav. Bank v. Glickman, 197 A.D.3d 1189, 1191, 151 N.Y.S.3d 363 [internal quotation marks omitted]). However, "[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine" ( Shields v. Darpoh, 207 A.D.3d 586, 587, 169 N.Y.S.3d 850 [internal quotation marks omitted]). Here, the defendant's proposed affirmative defense based on the statute of limitations is neither palpably insufficient nor patently lacking in merit, and the plaintiff failed to demonstrate the existence of any surprise or prejudice that would result from the amendment (see U.S. Bank N.A. v. Cuesta, 208 A.D.3d 821, 823–824, 172 N.Y.S.3d 638 ; Onewest Bank, FSB v. N & R Family Trust, 200 A.D.3d 902, 155 N.Y.S.3d 344 ; PennyMac Corp. v. Khan, 178 A.D.3d 1064, 1067, 116 N.Y.S.3d 64 ; cf. Bank of Am., N.A. v. Green, 208 A.D.3d 1143, 1145, 174 N.Y.S.3d 114 ).
The Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was, in effect, for leave to reargue its opposition to that branch of the defendant's separate cross-motion which was to dismiss the complaint insofar as asserted against it as time-barred, and, upon reargument, denying that branch of the separate cross-motion, albeit for different reasons than those stated by the court. The record before us does not demonstrate that the defendant sustained its initial burden of demonstrating, prima facie, that this action was untimely (see U.S. Bank, N.A. v. DeGroat, 186 A.D.3d 1454, 1455, 128 N.Y.S.3d 866 ; J.A. Lee Elec., Inc. v. City of New York, 119 A.D.3d 652, 654, 990 N.Y.S.2d 223 ). The burden therefore did not shift to the plaintiff "to raise a question of fact as to whether the statute of limitations was tolled or ... otherwise inapplicable, or whether it actually commenced the action within the applicable limitations period" ( J.A. Lee Elec., Inc. v. City of New York, 119 A.D.3d at 653, 990 N.Y.S.2d 223 ).
The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to reargue those branches of its prior motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference, and, upon reargument, granting those branches of the plaintiff's prior motion. Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie entitlement to judgment as a matter of law through the production of the mortgage, the unpaid note, and evidence of default (see Capital One, N.A. v. Liman, 193 A.D.3d 808, 809, 142 N.Y.S.3d 411 ). Where the plaintiff's standing to commence the foreclosure action is placed in issue by a defendant, the plaintiff is required to prove its standing as part of its prima facie showing (see Deutsche Bank Natl. Trust Co. v. Schmelzinger, 189 A.D.3d 1173, 1174, 138 N.Y.S.3d 540 ; U.S. Bank N.A. v. 22 S. Madison, LLC, 170 A.D.3d 772, 773, 95 N.Y.S.3d 264 ). Here, the plaintiff established, prima facie, its standing by demonstrating that it had physical possession of the note at the time it commenced the action, as evidenced by its attachment of the note, endorsed in blank, to the summons and complaint (see USBank N.A. v. Haliotis, 185 A.D.3d 756, 759, 128 N.Y.S.3d 17 ).
However, the plaintiff failed to establish, prima facie, a default in payment on the note. While the affidavit submitted by the plaintiff made the requisite showing that the affiant was familiar with the plaintiff's record-keeping practices and procedures with respect to the payment history, the affiant failed to submit any business record substantiating the alleged default (see Wells Fargo Bank, N.A. v. Pane, 210 A.D.3d 934, 936, 178 N.Y.S.3d 209 ; Citibank, N.A. v. Potente, 210 A.D.3d 861, 863, 179 N.Y.S.3d 91 ; U.S. Bank N.A. v. Kahn Prop. Owner, LLC, 206 A.D.3d 850, 851, 168 N.Y.S.3d 349 ; USBank N.A. v. Haliotis, 185 A.D.3d at 759, 128 N.Y.S.3d 17 ). "While a witness may read into the record from the contents of a document which has been admitted into evidence, a witness's description of a document not admitted into evidence is hearsay" ( U.S. Bank N.A. v. 22 S. Madison, LLC, 170 A.D.3d 772, 774, 95 N.Y.S.3d 264 [citation omitted]; see Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 97 N.Y.S.3d 286 ). "[I]t is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted" ( Bank of N.Y. Mellon v. Gordon, 171 A.D.3d at 205, 97 N.Y.S.3d 286 ; see USBank N.A. v. Haliotis, 185 A.D.3d at 759, 128 N.Y.S.3d 17 ).
The defendant's remaining contentions are either without merit or not properly before this Court.
DILLON, J.P., MALTESE, GENOVESI and TAYLOR, JJ., concur.