Opinion
No. 16695 Index No. 850136/14 Case No. 2022-00599
11-17-2022
Emigrant Bank, as Successor-by-Merger With Emigrant Savings Bank - Manhattan, Plaintiff-Respondent, v. Luigi Rosabianca et al., Defendants, Secured Lending LLC, Defendant-Appellant.
The Law Offices of Mitchell Cantor, New York (Mitchell Cantor of counsel), for appellant. Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for respondent.
The Law Offices of Mitchell Cantor, New York (Mitchell Cantor of counsel), for appellant.
Adam Leitman Bailey, P.C., New York (Jeffrey R. Metz of counsel), for respondent.
Before: Kapnick, J.P., Webber, Friedman, Gesmer, Singh, JJ.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered November 22, 2021, which, to the extent appealed from, granted plaintiff Emigrant Bank's motion to dismiss defendant Secured Lending LLC's first affirmative defense, unanimously reversed, on the law, with costs, and the motion denied.
"When moving to dismiss an affirmative defense pursuant to CPLR 3211(b), the plaintiff bears the heavy burden of showing that the defense is without merit as a matter of law (Alpha Capital Anstalt v General Biotechnology Corp., 191 A.D.3d 515, 515 [1st Dept 2021])." "The allegations in the answer must be viewed in the light most favorable to the defendant (id.), and the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed" (Pugh v New York City Hous. Auth., 159 A.D.3d 643, 643 [1st Dept 2018]). Secured's first affirmative defense to plaintiff's complaint, equitable subrogation, asserts: "[P]laintiff cannot demonstrate... that Defendant could have had actual or constructive notice of the facts alleged by Plaintiff. And as such Defendant's lien takes priority over Plaintiff's." That was sufficient to state a defense based on the priority of Secured's lien on the foreclosed property (see Tenzer, Greenblatt, Fallon & Kaplan v Ellenberg, 199 A.D.2d 45, 45 [1st Dept 1993]; Matter of Ideal Mut. Ins. Co., 140 A.D.2d 62, 67 [1st Dept 1988]).
"[T]he statute of limitations governs the commencement of an action, not the assertion of a defense" (CPLR 203[d]; Tauber v Village of Spring Val., 56 A.D.3d 660, 661 [2d Dept 2008]). Secured's participation in the foreclosure action, as well as the filing of a cross claim, counterclaim, affirmative defenses, and stipulation, put all parties with an interest in the property on notice that Secured was asserting a right to a priority lien on the Wall Street property (see Bennardo v Del Monte Caterers, Inc., 27 A.D.3d 503, 505 [2d Dept 2006]; see also NYCTL 1997-1 Trust v Stell, 184 A.D.3d 9, 17 [2d Dept 2020]).