Steward Title Ins. Co. v Jacobowitz 2017 NY Slip Op 30042(U) January 9, 2017 Supreme Court, New York County Docket Number: /2013 Judge: Manuel

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1 Steard Title Ins. Co. v Jacoboitz 217 NY Slip Op 342(U) January 9, 217 Supreme Court, Ne York County Docket Number: /213 Judge: Manuel J. Mdez Cases posted ith a "3" idtifier, i.e., 213 NY Slip Op 31(U), are republished from various state and local governmt ebsites. These include the Ne York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.

2 [* FILED: 1] NEW YORK COUNTY CLERK 1/11/217 1:57 AM INDEX NO /213 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 1/11/217 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: MANUELJ.MENDEZ ~-~~~~~~~"-="'==----~ Justice PART 13 STEWARD TITLE INSURANCE COMPANY, as assignee and subrogee of the Community Preservation Corporation, Plaintiff, -against- AGNES JACOBOWITZ, INDEX NO /213 MOTION DATE MOTION SEQ. NO. 2 MOTION CAL. NO Defdant The folloing papers, numbered 1 to.jl ere read on this motion to extd the Notice of Pdcy and for Summary Judgmt: PAPERS NUMBERED Notice of Motion/ Order to Sho Cause - Affidavits - Exhibits Ansering Affidavits - Exhibits 5 - -z u _ <( I- :: <!> :::> z..., - 3: I- c...j...j :: :: LL WW LL :C l- o:: :: >-...J LL...J :::> LL 1- u a.. :: <( ~ z t== :i! Replying Affidavits 6-9 Cross-Motion: D Yes X No Upon a reading of the foregoing cited papers, it is Ordered that plaintiff's motion to extd the notice of pdcy and for summary judgmt, is granted. Defdant is a principal of Brookhav Developmt LLC (hereinafter referred to as "Brookhav"). Plaintiff is a title insurance company and the assignee of Community Preservation Corporation (hereinafter referred to as "CPC"). On January 16, 28, CPC gave an acquisition loan secured by a mortgage to Brookhav for real property located at to addresses, at and Gateay Boulevard, Far Rockaay, Ne York. On January 16, 28, defdant executed a ritt guaranty of paymt on the Brookhav mortgage, pledging not to convey, transfer or cumber her assets (Mot. King Aff. Exh.7). Plaintiff claims defdants assets include her property located at 16 Clymer Street, Unit 1, Brooklyn, Ne York, Block 2173, Lot 111 (Mot. Exh. 6). The mortgage funds ere fraudultly transferred pursuant to a January 16, 28 payoff letter by John Simmons an individual that held himself out as the attorney for an tity alleged to have assumed the prior oner's mortgages. The prior oner's mortgages ere never satisfied. Mr. Simmons pied guilty to federal fraud charges related to the transaction. A series of actions taking place in Ques and Kings County ere brought. CPC unsuccessfully sought to foreclose on the Gateay Boulevard, Far Rockaay, Ne York property, but as unable to do so because the prior oner's mortgage as deemed sior. In another action that is still pding there is another pottial sior mortgage on the property located at Gateay Boulevard, Far Rockaay, Ne York. On February 11, 213 plaintiff settled CPC's claims and acquired all rights against Brookhav and the defdant. On April 1, 213, plaintiff filed a notice of pdcy and commced this action. The Complaint seeks injunctive relief prevting the defdant from selling, conveying, assigning, pledging, cumbering or otherise transferring any interest in the property located at 16 Clymer Street, Unit 1, 1 of 4

3 [* 2] Brooklyn, Ne York, Block 2173, Lot 111 (hereinafter referred to as the "property"), in violation of an asset restraint provision in a guaranty giv by the defdant hile any portion remains unpaid (Mot. Exh. 1). Plaintiff's motion seeks an Order pursuant to CPLR 6513 granting a three year extsion of the Notice of Pdcy filed against the property ith the Kings County Clerk's Office on April 17, 213. Plaintiff also seeks an Order pursuant to CPLR 3212 granting summary judgmt on the injunction. Plaintiff claims the determinations that the CPC mortgage is not sior for the to addresses located at and Gateay Boulevard, Far Rockaay, Ne York, is being appealed and that it vigorously litigated in three differt actions to preserve the mortgage collateral of the guaranty. Plaintiff argues that there is good cause because ithout the extsion on the Notice of Pdcy the outstanding balance secured by defdant's guaranty ill not be paid, rdering the only remaining security of value for the repaymt of the CPC loan, virtually orthless. The authority and procedural requiremts for Notices of Pdcy are set forth in Article 65 of the CPLR. A properly filed Notice of Pdcy places, "the orld on notice of plaintiff's pottial rights in the action" and the named property (In Re Sako, 97 N.Y. 2d 436, 767 N.E. 2d 666, 741 N.Y.S. 2d 175 [22]). CPLR 6513, permits a three year extsion of the Notice of Pdcy as long as the application is made before the expiration date and good cause is shon (Miller-Francis v. Smith-Jackson, 113 A.O. 3d 28, 976 N.Y.S. 2d 34 [1st Dept., 213]). Good cause can include pding motion practice that delays a final adjudication of the action (Knof v. Sanford, 11 A.O. 3d 52, 972 N.Y.S. 2d 893 [1st Dept., 213]). Plaintiff sought extsion of the Notice of Pdcy before the expiration date and has stated good cause for the three year extsion. The multiple and protracted litigations taking place in both Ques and Brooklyn delayed the relief sought in this action, hich is good cause for the extsion. Plaintiff seeks summary judgmt on an injunction, joining the defdant from selling, conveying, assigning, pledging, cumbering, or otherise transferring or disposing of any interest in the property for as long as any portion of the balance due to plaintiff under the guaranty remains unpaid. Plaintiff argues that it is titled to summary judgmt on the injunctive relief because as assignee of CPC, it is titled to foreclosure relief on the mortgage note and the guaranty and the only remaining security on the balance of the mortgage is the guarantee. In support of the relief sought plaintiff relies on the affidavit of Richard J. King Esq., its vice presidt and regional counsel, ho claims that he has personal knoledge of the material facts resulting from the revie of acknoledged and recorded documts, administration of CPC's claim and attempts to recover losses as a result of settlemt of the claim. Mr. King claims the defdant has already breached the promise made in the guaranty by failing to make any paymt, and that ithout the injunctive relief there may be no recovery. In order to prevail on a motion for summary judgmt pursuant to CPLR 3212, the propont must make a prima facie shoing of titlemt to judgmt as a matter of la, through admissible evidce, eliminating all material issues of fact (Klein v. City of Ne York, 89 N.Y. 2d 833, 675 N.E. 2d 548, 652 N.Y.S. 2d 723 [1996]). Once the moving 2 of 4

4 [* 3] party has satisfied these standards, the burd shifts to the oppont to rebut that prima facie shoing, by producing contrary evidce in admissible form, requiring a trial of material factual issues (Amatulli v. Delhi Constr. Corp., 77 N.Y. 2d 525, 571 N.E. 2d 645; 569 N.Y.S. 2d 337 [1999]). Defdant provides only the affidavit of her attorney in opposition to the motion and argues that Mr. King's affidavit fails to make a proper foundation for the business records. Defdant also argues that the mortgage and note ere invalid for lack of consideration and that plaintiff as negligt in clearing title and is seeking to force a flaed claim. An affirmation from an attorney having no personal knoledge of the facts is hearsay that has no probative value, and is insufficit for purposes of defeating summary judgmt (Johanns v. Rudolph, 34 A.O. 3d 338, 824 N.Y.S. 2d 276 [1st Dept., 26]). The affidavit of Richard J. King, Esq., does not rely on hearsay and states a prima facie basis to obtain summary judgmt on the injunctive relief sought. The hearsay affidavit of defdant's attorney is insufficit to raise an issue of fact. In any case, defdant's argumts fail to state a basis to dy summary judgmt. CPC as granted summary judgmt in a foreclosure action and defdant's anser as strick by the February 28, 211, Decision and Order of the Hon. Marguerite A. Grays, in a Ques action filed under index # 1843/21, and a subsequt motion by the defdant to vacate as died (Reply Exhs. 1 and 2). An action brought by the defdant to recover insurance proceeds against plaintiff in Kings County filed under index #12/21, resulted in a May 9, 214, Decision and Order of the Hon. Mark I. Partno hich found that Brookhav created the conditions that alloed the defect in title to arise and that there as no titlemt to recovery from plaintiff in this action (Reply Exh. 3). Accordingly, it is ORDERED, that plaintiff's motion to extd the notice of pdcy and for summary judgmt, is granted, and it is further, ORDERED, that the Notice of Pdcy filed against the property situated at 16 Clymer Street, Unit 1, Brooklyn, Ne York, idtified on the tax map as Block 2173, Lot 111, hich is oned by defdant AGNES JACOBOWITZ, filed on April 17, 213, is extded for three years from the date of expiration, and it is further, ORDERED, that the Ne York County Clerk is directed to forthith ter this Order and upon paymt of the requisite fees issue a certified copy of this Order to plaintiff's counsel, and it is further, ORDERED, that the Kings County Clerk is directed upon receipt of a certified copy of this Court's Order and the paymt of any requisite fees to forthith make the proper notations upon the land records extding the Notice of Pdcy, and it is further, ORDERED, that plaintiff shall, pursuant to e-filing protocol, serve a copy of this Order ith Notice of Entry on the Geral Clerk's Office and separately, pursuant toe-filing protocol upon the Ne York County Clerk's Office, and it is further, ORDERED, that plaintiff is granted an injunction, joining AGNES JACOBOWITZ from selling, conveying, assigning, pledging, cumbering, or otherise transferring or disposing of any interest in the property located at 16 3 of 4

5 [* 4] Clymer Street, Unit 1, Brooklyn, Ne York, idtified on the tax map as Block 2173, Lot 111, for as long as any portion of the balance due to plaintiff under the guaranty remains unpaid, and it is further, ORDERED, that the Clerk of the Court is directed to ter judgmt accordingly. Dated: January 9, 217 ENTER: ~,. MANUEL J. MENOt:Z ' MA Eli.MEDEZ, J.s.c, J.S.C. Check one: X FINAL DISPOSITION NON-FINAL DISPOSITION Check if appropriate: D DO NOT POST D REFERENCE 4 of 4