Opinion
No. 2022-07450 Index No. 500747/20
05-22-2024
Ron Wish, LLC, Appellant, v. Myung Ja Kim, etc., et al., Defendants, Williamsburg United, LLC, Respondent.
Borchert & LaSpina, P.C., Whitestone, NY (Edward A. Vincent of counsel), for appellant.
Borchert & LaSpina, P.C., Whitestone, NY (Edward A. Vincent of counsel), for appellant.
VALERIE BRATHWAITE NELSON, J.P., PAUL WOOTEN, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated August 10, 2022. The order, insofar as appealed from, denied, as premature, that branch of the plaintiff's motion which was for summary judgment dismissing the counterclaim of the defendant Williamsburg United, LLC, with leave to renew within 30 days after the resolution of a related action entitled Williamsburg United, LLC v Myoung Ja Kim, pending in the same court under Index No. 509776/17.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a determination on the merits of that branch of the plaintiff's motion which was for summary judgment dismissing the counterclaim of the defendant Williamsburg United, LLC.
The plaintiff commenced this action against the defendant Williamsburg United, LLC (hereinafter Williamsburg), among others, to foreclose a mortgage on certain real property located in Brooklyn. The mortgage was entered into on June 9, 2017, and recorded on June 15, 2017. The complaint identified Williamsburg as a potential transferee of the property and sought to extinguish any interest held by it. Williamsburg joined issue and asserted a counterclaim alleging that it had entered into a contract of sale with the owner of the property on February 14, 2017, and that it had commenced an action in the Supreme Court, Kings County, against the owner entitled Williamsburg United, LLC v Myoung Ja Kim, under Index No. 509776/17, alleging breach of the contract of sale and seeking specific performance, among other remedies. Williamsburg alleged that it had filed a notice of pendency in relation to that action on May 17, 2017, and that its ownership interest in the property was superior to the plaintiff's mortgage. The counterclaim sought a judgment declaring that Williamsburg's interests were superior to those of the plaintiff.
The plaintiff moved, inter alia, for summary judgment dismissing Williamsburg's counterclaim. Williamsburg opposed the motion, arguing that the plaintiff had failed to meet its burden on summary judgment of establishing the superiority of its mortgage interest. In the order appealed from, the Supreme Court noted that the related action under Index No. 509776/17 was ongoing. The court, therefore, denied the plaintiff's motion as premature, with leave to renew within 30 days after the resolution of the related action. The plaintiff appeals from so much of the order as denied that branch of its motion which was for summary judgment dismissing Williamsburg's counterclaim.
The Supreme Court erred in denying the motion on a ground not raised or litigated by the parties (see U.S. Bank N.A. v Bajwa, 208 A.D.3d 1197, 1199; Kamil El-Deiry & Assoc. CPA, PLLC v Excellent Home Care Servs., LLC, 208 A.D.3d 1170, 1171; Rosenblatt v St. George Health and Racquetball Assoc., LLC, 119 A.D.3d 45, 54). Since the court did not consider the merits of that branch of the plaintiff's motion which was for summary judgment dismissing Williamsburg's counterclaim, we reverse insofar as appealed from and remit the matter to the Supreme Court, Kings County, for a determination on the merits of that branch of the motion (see Ritchey v Ritchey, 218 A.D.3d 617, 619; Deutsche Bank Natl. Trust Co. v Winslow, 180 A.D.3d 1000, 1001-1002).
BRATHWAITE NELSON, J.P., WOOTEN, FORD and TAYLOR, JJ., concur.