Opinion
2014-05-7
TD BANK, N.A., etc., plaintiff, Lawrence Equity Holdings, LLC, appellant, v. 126 SPRUCE STREET, LLC, et al., respondents.
Kenneth J. Glassman, New York, N.Y. (Ross M. Eisenberg of counsel), for appellant. Hirschel Law Firm, P.C., Garden City, N.Y. (Daniel Hirschel of counsel), for respondents 126 Spruce Street, LLC, David Neuberg, and Malkie Neuberg.
Kenneth J. Glassman, New York, N.Y. (Ross M. Eisenberg of counsel), for appellant. Hirschel Law Firm, P.C., Garden City, N.Y. (Daniel Hirschel of counsel), for respondents 126 Spruce Street, LLC, David Neuberg, and Malkie Neuberg.
Dollinger, Gonski & Grossman, Carle Place, N.Y. (Matthew Dollinger and Leslie Foodim of counsel), for respondent Club Central, LLC.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and COLLEEN D. DUFFY, JJ.
In an action, inter alia, to foreclose a mortgage, the plaintiff Lawrence Equity Holdings, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Galasso, J.), dated September 13, 2012, as denied, in effect, as premature, that branch of its motion which was for summary judgment on its cause of action for foreclosure.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
Although the plaintiff Lawrence Equity Holdings, LLC (hereinafter Lawrence), demonstrated its prima facie entitlement to judgment as a matter of law on its cause of action for foreclosure ( see Citibank, N.A. v. Van Brunt Props., LLC, 95 A.D.3d 1158, 1159, 945 N.Y.S.2d 330;Zanfini v. Chandler, 79 A.D.3d 1031, 1032, 912 N.Y.S.2d 911;HSBC Bank USA v. Merrill, 37 A.D.3d 899, 900, 830 N.Y.S.2d 598;Household Fin. Realty Corp. of N.Y. v. Winn, 19 A.D.3d 545, 546, 796 N.Y.S.2d 533), the Supreme Court properly denied, in effect, as premature, that branch of its motion which was for summary judgment on that cause of action ( see Aurora Loan Servs., LLC v. LaMattina & Assoc., Inc., 59 A.D.3d 578, 872 N.Y.S.2d 724;Ruiz v. Griffin, 50 A.D.3d 1005, 1006, 856 N.Y.S.2d 641;Juseinoski v. New York Hosp. Med. Ctr. of Queens, 29 A.D.3d 636, 637, 815 N.Y.S.2d 183;Baron v. Incorporated Vil. of Freeport, 143 A.D.2d 792, 792–793, 533 N.Y.S.2d 143). “CPLR 3212(f) permits a party opposing summary judgment to obtain further discovery when it appears that facts supporting the position of the opposing party exist but cannot be stated” ( Juseinoski v. New York Hosp. Med. Ctr. of Queens, 29 A.D.3d at 637, 815 N.Y.S.2d 183;see Aurora Loan Servs., LLC v. LaMattina & Assoc., Inc., 59 A.D.3d at 578, 872 N.Y.S.2d 724;Ruiz v. Griffin, 50 A.D.3d at 1006, 856 N.Y.S.2d 641). “ This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion” ( Baron v. Incorporated Vil. of Freeport, 143 A.D.2d at 793, 533 N.Y.S.2d 143;see Aurora Loan Servs., LLC v. LaMattina & Assoc., Inc., 59 A.D.3d at 578, 872 N.Y.S.2d 724). Here, the defendant Club Central, LLC, raised issues warranting further discovery. Accordingly, the Supreme Court properly denied, in effect, as premature, that branch of Lawrence's motion which was for summary judgment on its cause of action for foreclosure.