Motion for Child Support in 31 East 28th Street Note Buyer Llc v. Jack Terzi, Hagai Laniado| Trellis.Law

On July 17, 2019 a Motion-Secondary was filed involving a dispute between 31 East 28Th Street Note Buyer Llc, and Hagai Laniado, Jack Terzi, for Commercial Division in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 10/17/2019 12:15 PM INDEX NO. 654085/2019
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 10/17/2019

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

31 EAST 28TH STREET NOTE BUYER LLC,

Plaintiff,

Index No.: 654085/2019

JACK TERZI and HAGAI LANIADO,

Defendants.

PLAINTIFF'S REPLY MEMORANDUM OF LAW
IN FURTHER SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AND
DEFENDANTS'
IN OPPOSITION TO CROSS-MOTION TO DISMISS OR STAY

WOODS OVIATT GILMAN LLP
John K. McAndrew, Esq.
Attorneys for Plaintly
1900 Bausch & Lomb Place

Rochester, New York 14604
585.987.2800

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TABLEOFCONTENTS

Page

PRELIMINARY STATEMENT .....................................................................................................1

STATEMENT OF FACTS...............................................................................................................4

ARGUMENT...................................................................................................................................4

I. NO GROUNDS TO DISMISS OR STAY BASED ON PRIOR PENDING
ACTION..............................................................................................................................4

A. Dismissal Under CPLR 3211(a)(4) is Not Warranted...................................................4

B. A Stay Under CPLR 2201 is Not Warranted.................................................................7

II RPAPL 1301 DOES NOT BAR THIS ACTION.............................................................8

III SUMMARY JUDGEMENT SHOULD BE GRANTED ..................................................10

CONCLUSION..............................................................................................................................12

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TABLE OF AUTHORITIES

Page

Cases

Abrams v. Xenon Indus., Inc., 145 A.D.2d 362, 363 (1st Dep't. 1988)..........................................
7

Anonymous v. Anonymous, 136 A.D.3d 506, 507 (1st Dep't. 2016)..............................................
6

Asher v. Abbott Labs., 307 A.D.2d 211 (1st Dep't. 2003)..............................................................
8

Bailey v. New York City Transit Auth., 270 A.D.2d 156, 157 (1st Dept. 11
2000)...........................

Bank of Am., N.A. v. Solow, 59 A.D.3d 304, 305 (1st Dep't 11
2009)..............................................

Bank of N.Y. Mellon v. Adam P10tch LLC, 162 A.D.3d 502, 502 (1st Dep't 2018)......................
9

Citibank, N.A. v. Ferrara,
at * 11
2010 N.Y. Misc. LEXIS 3334, 9 (Sup. Ct. N.Y. Cty. June 24, 2010)...............................

City Line Auto Mall, Inc. v. Citicorp Leasing, Inc., 45 A.D.3d 717 (2d Dep't 2007)....................
6

DLJ Mtge. Capital v. Mahadeo, 166 A.D.3d 512, 514 (1st Dep't 2018).......................................
5

Goodridge v. Fernandez, 121 A.D.2d 942, 945 (1st Dep't 1986)..................................................
8

Hometown Bank of Hudson Val. v. Colucci, 127 A.D.3d 702, 703-704 (2d Dep't. 2015).............
9

MAC Land Co., LLC v. East End Cement & Stone, Inc.,
2010 N.Y. Misc. LEXIS 5493, at *12 (Sup. Ct. Suffolk Cty. Nov. 8, 2010).............................
6

Middlebury Office Park Ltd. Pshp. v. Gen. Datacomm Indus.,
248 A.D.2d 313, 314 (1st Dep't. 1998)......................................................................................
7

MLB Sub I,LLC v. Grimes, 170 A.D.3d 992, 994 (2d Dep't. 2019)..............................................
9

Old Republic Nat'l Tit.Ins. Co. v. Conlin, 129 A.D.3d 804, 805 (2d Dep't. 2015).......................
8

Seawood Investors v. Goldstein, 378 N.Y.S.2d 987 (2nd Dep't 1976)........................................
10

White Light Prods. v. On the Scene Prods, 231 A.D.2d 90, 93-94 (1st Dep't 1997).....................
5

Whitney v. Whitney, 57 N.Y.2d 731, 732 4
(1982)............................................................................

Wimbledon Fin. Master Fund, Ltd. v. Bergstein, 147 A.D.3d 644, 645 (1st Dep't 2017)............. 5

Rules/Statutes

CPLR § 2201...........................................................................................................................
4, 7, 8

CPLR 3211(a)(4)................................................................................................................
4, 5, 6, 7

CPLR § 10, 11, 12
3213.....................................................................................................................

RPAPL § 1301......................................................................................................................
8, 9, 10

RPAPL § 1371..............................................................................................................................
10

Other Authorities

1 Bergman on New York Mortgage Foreclosures § 7.12 (2019)...................................................
9

..
H
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PRELIMINARY STATEMENT

The Plaintiff submits this Reply Memorandum of Law, together with the Affirmation of

John K. McAndrew, Esq., (the "McAndrew Aff.") and the exhibits annexed thereto, in further

Defendants'
support of its motion for summary judgment and in opposition to cross-motion to

Defendants'
dismiss or stay. Plaintiff's motion for summary judgment should be granted, and

cross-motion denied, for the simple reason that Plaintiff's prior claims related to the underlying

mortgage sought different relief, were based on a distinct event of default, and have since been

disposed of in their entirety. Nothing in that prior action prevents Plaintiff from enforcing the

Defendants'
unambiguous terms of personal guaranty, where there can be no dispute about the

existence of either the obligation (the guaranty to pay the full amount due under the Note on the

maturity date) or the default (the Note matured on August 10, 2017).

As a threshold matter, Defendant's arguments to dismiss or stay the subject action based

upon pending litigation is entirely without merit, as the prior action seeking to foreclose Plaintiff's

"pending."
mortgage lien has been disposed and is no longer On August 22, 2017, Plaintiff

commenced an action in New York State Supreme Court, New York County, seeking to foreclose

on the mortgage encumbering real property at 31 East 28th Street, New York, NY (Index No.

850193/2017, hereinafter the "Prior Action"). The foreclosure in the Prior Action was based upon a

default by defendants (a failure to maintain sufficient funds in a cash collateral account) and

consequent acceleration of the maturity date. Subsequent to issue being joined in that action,

defendants' counterclaims,1
Plaintiff moved for summary judgment dismissing the and the

defendants in that action (including Terzi) filed their own cross-motion for summary judgment. The

two summary judgment motions were consolidated for disposition and in a Decision and Order

1 defendants'
For purposes of this memorandum, references to counterclaims in the Prior Action

include the third-party claim of JTRE Park 28 LLC.

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dated May 21, 2019, the Court held that the default notice precipitating the foreclosure in the Prior

Action was void based upon Plaintiff's failure to provide defendants with the requisite period to

cure. McAndrew Aff. ¶¶ 4-5, Ex. A at 6-7 (Decision and Order, Index No. 850193/2017 (May 21,

2019) [NYSCEF Doc. No. 163] (hereinafter the "May 21 Order")). The Court ordered that "[t]he

motion for summary judgment by plaintiff is denied and cross motion by defendants . . . for

summary judgment dismissing the complaint is granted and the clerk is directed to enter judgment

disbursements."
accordingly with costs and Id. The Prior Action has accordingly been designated

"disposed"
as by the court clerk. McAndrew Aff. ¶ 8, Ex. B at4.

The hail-Mary attempt to resuscitate the Prior Action by arguing that the Court's

defendants'
unambiguous disposal of the entire action was defective because the counterclaims

were not specifically addressed does not help Defendants here. Nor are Defendants aided by the

"live"
argument that the foreclosure dispute is still based on Plaintiff's filing an appeal as of right.

defendants'
First, even in the (unlikely) event that the Court in the Prior Action intended the

counterclaims to survive dismissal of the action, there would stillbe no remaining claims by

Plaintiff seeking foreclosure or any other remedy based on the mortgage. Second, Plaintiff's appeal

from the May 21 Order is expressly limited to the portion of the Order that denied Plaintiff's motion

for summary judgment seeking to dismiss the counterclaims-in other words, Plaintiff is not

appealing the dismissal of the foreclosure action or the finding that the default notice precipitating

that action was void. McAndrew Aff. ¶ 10, Ex. C. So any argument by Defendants that Plaintiff's

foreclosure or mortgage-debt-related claims remain alive in the Prior Action is erroneous.

While not dispositive here, itis telling that Defendants repeatedly misrepresent the holdings

from the May 21 Order disposing of the Prior Action in an attempt to sway this Court. For

example, Defendants continue to refer to the undisputed failure to maintain the requisite funds in the

default"
cash collateral account as "a technical that was immaterial, despite the prior Court's explicit

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"reject[ion] [of] the . .. contention that this alleged breach should be ignored because itwas not a

breach,"
material and express finding that "the obligations with respect to the Cash Collateral

inconsequential." defendants'
Account [were] anything but McAndrew Aff., Ex. A at 4. The

material breach was clearly found by the prior Court, as is evident from the fact that the statement

inconsequential"
about the obligation to maintain the cash collateral account being "anything but is

directly followed by the statement: "However, the Court finds that the Moving Defendants were

."
entitled to 30 days notice . . Id. at 5 (emphasis added). In other words, the Court recognized the

fact of a material breach, but found that Plaintiff provided insufficient time for defendants to cure

that breach.

Similarly, Defendant baldly states that the Court in the Prior Action "held that Plaintiff did

Documents"
indeed violate the Loan by declaring Defendants to be in default ([NYSCEF Doc. No.

19] at 8 (hereinafter "Def. Br.")), when that is patently not the case. The May 21 Order was limited,

by its own terms, to the question of "whether the failure to maintain the Cash Collateral Account

constituted a material default and whether plaintiff provided the Borrowers with the required cure

default."
period to remedy this McAndrew Aff., Ex. A at 2. The prior Court clearly answered the

first question in the affirmative, and the latter in the negative, resulting in the precipitating default

notice being rendered void-nowhere does the Court make a finding that Plaintiff breached the loan

documents. See, Id. at 6 ("[T]he Court finds that JTRE and Terzi should have received 30 days to

void."
cure and the failure to provide the requisite cure period renders the default (emphasis

added)).

Furthermore, even if the Prior Action were stillpending-and Plaintiff does not concede

that it is-neither dismissal nor a stay is warranted because there is no identity of claims or relief

between the two actions. Plaintiff's foreclosure claims in the Prior Action (prior to their dismissal)

sought different relief and were based on a default notice that has since been held void. In contrast,

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in this action Plaintiff is seeking a money judgment against Defendants pursuant to the

unambiguous terms of the personal guaranty.

Defendants'
With respect to Plaintiff's motion for summary judgment, arguments in

opposition are unavailing. The only facts material to this action (the terms of the personal guaranty

and the existence and maturity of the mortgage) are not in dispute, and Defendants cannot base their

opposition on vague statements about the need for additional discovery, particularly when such

discovery relates to (potentially dismissed) counterclaims in a completely separate action.

STATEMENT OF FACTS

The relevant facts are set forth in the Affidavits of Plaintiff and Plaintiff's attorney,

previously submitted in support of Plaintiff's motion for summary judgment.

ARGUMENT

I. NO GROUNDS TO DISMISS OR STAY BASED ON PRIOR PENDING ACTION

Defendants have failed to show that dismissal under CPLR 3211(a)(4) or a stay under

CPLR § 2201 is warranted here, because they have failed to establish the existence of a prior

pending action between these parties involving the same questions of facts and law.

A. Dismissal Under CPLR 3211(a)(4) is Not Warranted

Defendants'
motion to dismiss under CPLR 3211(a)(4) fails for multiple reasons. CPLR

3211(a)(4) "vests a court with broad discretion in considering whether to dismiss an action on

action,"
the ground that another action is pending between the same parties on the same cause of

Whitney v. Whitney, 57 N.Y.2d 731, 732 (1982), and all evidence here militates against the Court

exercising that discretion to dismiss this action. As an initial matter, a threshold requirement of

pending"
CPLR 3211(a)(4) is that "there is another action and as discussed above, the Prior

Action is no longer pending. CPLR 3211(a)(4). See DLJ Mtge. Capital v. Mahadeo, 166

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A.D.3d 512, 514 (1st Dep't 2018) (reversing dismissal based on CPLR 3211(a)(4) because "the

prior actions were no longer 'pending'"). In the May 21 Order, the prior Court denied Plaintiff's

defendants'
summary judgment motion, granted the motion to dismiss the complaint, and

directed the clerk to enter judgment. McAndrew Aff., Ex. A at 6-7. These holdings and

directives are consistent with a disposal of the action (which is undoubtedly why the case was

marked as disposed by the clerk).

Defendant also argues that the Prior Action is still pending because Plaintiff filed an

appeal as of right. Def. Br. at 12. This argument is disingenuous at best, and pure falsity at

worst: Plaintiff's appeal-as Defendant is well aware-is expressly limited to that portion of the

May 21 Order denying Plaintiff's motion for summary judgment seeking dismissal of the

defendants'
counterclaims. McAndrew Aff. ¶ 10, Ex. C. Plaintiff is not appealing the dismissal

of its foreclosure claims, and any suggestion that it is, or that such claims remain live as a result

of Plaintiff's appeal is nothing less than a blatant attempt to mislead this Court.

Should this Court determine that the Prior Action is stillactive, dismissal under CPLR

3211(a)(4) is still not warranted, because all of Plaintiff's foreclosure claims have been

dismissed in the Prior Action and therefore the sufficient identity with respect to the causes of

action between the two cases is lacking. See White Light Prods. v. On the Scene Prods, 231

A.D.2d 90, 93-94 (1st Dep't 1997) (finding that "it is necessary that there be sufficient identity

asserted"
as to both the parties and the causes of action and that "[w]ith respect to the subject of

same"
the actions, the relief sought must be the same or substantially the (internal quotations and

citations omitted)). See also Wimbledon Fin. Master Fund, Ltd. v. Bergstein, 147 A.D.3d 644,

645 (1st Dep't 2017) (affirming denial of CPLR 3211(a)(4) motion to dismiss because, "[w]hile

there is some overlap between the parties and claims . . .the nature of the relief sought is not

same"
substantially the (internal quotations and citations omitted)). The fact that Plaintiff's

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claims have been disposed of in the Prior Action-to the extent itis still a action at all-
pending

utterly precludes a finding that there exists a currently pending action where Plaintiff is seeking

relief"
"substantially the same that is being sought here.

This argument fails in substance as well as in form, because Defendants cannot deny that

the two actions arise from distinct occurrences and seek different relief. The Prior Action was an

defendants'
attempt to foreclose the underlying mortgage based on the default in failing to

maintain the minimum amount in the cash collateral account, while the present action is seeking

Defendants'
to enforce personal guaranty based upon the fact that the maturity date has passed

and Defendants failed to pay the amount owed upon maturity. See MAC Land Co., LLC v. East

End Cement & Stone, Inc., 2010 N.Y. Misc. LEXIS 5493, at *12 (Sup. Ct. Suffolk Cty. Nov. 8,

2010) ("If . .. itappears that the relief sought is different because itis premised upon new and/or

different acts which give rise to new and different demands for relief, the two actions may be

maintained."
(citations omitted)). See also City Line Auto Mall, Inc. v. Citicorp Leasing, Inc., 45

A.D.3d 717 (2d Dep't 2007) (denying a CPLR 3211(a)(4) motion because "[t]he causes of action

and relief sought in this action [for conversion relating to a vehicle repossession] are not the

same or substantially the same as those of the pending Civil Court action in which plaintiff

sought a refund of [a] payment itmade . .. to facilitate redemption of the [repossessed] vehicle")

(internal quotations and citations omitted)); Anonymous v. Anonymous, 136 A.D.3d 506, 507 (1st

Dep't. 2016) ("The court providently exercised its broad discretion in denying defendant's

motion to dismiss the breach of contract action pursuant to CPLR 3211(a)(4), since the relief

sought under that claim is not the same or substantially the same relief as that sought in the

divorce action."); Platinum Equity Advisors, LLC v. SDI, Inc., 2014 N.Y. Misc. LEXIS 6481, at

* 11 for CPLR
10, (Sup. Ct. N.Y. Cty. July 18, 2014) (holding that the prerequisites 3211(a)(4)

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were "lacking where the purposes of the two actions [were] entirely different . .. and the relief

different"
sought in the two actions [was] (internal quotations and citations omitted)).

Defendants'
attempt to distract from the straightforward issues of this action and its

distinction from the Prior Action by engaging in various histrionics about Plaintiff's purported

business practices of which Defendants do not approve, but such tactics are unavailing. All that

Defendants manage to accomplish by enumerating Plaintiff's alleged dastardly deeds is to

expose their own hypocrisy regarding the plain terms of underlying documents: Defendants try

to reap the benefits of the finding that the acceleration in the Prior Action was invalid, while

simultaneously declaring that said acceleration rendered the original maturity date void. Def. Br.

at 14, 20. This Court should not condone such gamesmanship.

B. A Stay Under CPLR § 2201 is Not Warranted

Defendants fail to demonstrate the need for a CPLR § 2201 stay for primarily the same

reasons that their CPLR 3211(a)(4) argument fails. The requisite identity between the two

actions is utterly lacking, and it would serve neither the interests of justice nor those of the

parties for this Court to order a stay. Even more so than under CPLR 3211(a)(4), a stay under

CPLR § 2201 requires identity of parties and claims. See Abrams v. Xenon Indus., Inc., 145

A.D.2d 362, 363 (1st Dep't. 1988) ("'itis only where the decision in one action will determine

all the questions in the other action, and the judgment on one trial will dispose of the controversy

in both actions that a case for a stay is presented.'") See also Middlebury Office Park Ltd. Pshp.

v. Gen. Datacomm Indus., 248 A.D.2d 313, 314 (1st Dep't. 1998) (reversing stay based on

CPLR § 2201 because only one of plaintiff's claims "fulfills the requirements for such a stay,

since it involves complete identity with the parties, claims and relief sought in the Federal

[action]").

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To the extent that Defendants attempt to on the Goodridge- Asher line of cases to
rely

support their motion for a stay, such reliance is misplaced. Goodridge v. Fernandez, 121 A.D.2d

942, 945 (1st Dep't 1986); Asher v. Abbott Labs., 307 A.D.2d 211 (1st Dep't. 2003). As an

initial matter, neither Goodridge nor Asher are controlling here, as this is not a circumstance

involving a state and federal action. See Asher, 307 A.D.2d at 211 (holding that "a stay may be

actions"
warranted when there is substantial identity between state and federal (emphasis

added); Goodridge, 121 A.D.2d at 945 (upholding a CPLR § 2201 stay where there was

action"
sufficient similarity of parties between "the instant action and the consolidated Federal

(emphasis added)). Furthermore, even ifAsher and itsprogeny were applicable here, Defendants

identity"
cannot establish the requisite "substantial between these two actions, because to the

extent the Prior Action is still pending, it is undisputed that Plaintiff's claims have been

dismissed, and so there can be no identity of the claims and relief sought.

II. RPAPL § 1301 DOES NOT BAR THIS ACTION

Defendants'
reliance on Section 1301(3) of the Real Property Actions and Proceedings

Law ("RPAPL") is similarly misplaced; the plain language of RPAPL 1301(3) renders it

inapplicable here, because there is currently no action pending to foreclose the underlying

remedies"
mortgage. Simply put, Plaintiff is not locked into an "election of when any

foreclosure claims have been dismissed in their entirety and Plaintiff has not elected to appeal

their dismissal. See Old Republic Nat'l Tit.Ins. Co. v. Conlin, 129 A.D.3d 804, 805 (2d Dep't.

2015) ("The purpose of this statute is to protect the mortgagor from the expense and annoyance

of simultaneously defending against two independent actions to recover the same mortgage

debt."
(internal quotations and citations omitted) (emphasis added)).

Pursuant to RPAPL 1301(3), "[w]hile [a foreclosure] action is pending or after final

judgment for the plaintiff therein, no other action shall be commenced or maintained to recover

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any part of the mortgage debt, without leave of the court in which the former action was

brought."
(emphasis added). However, itis axiomatic that "where a 'foreclosure action is no

longer pending and did not result in a judgment in the plaintiff's favor, the plaintiff is not

action' court."
precluded from commencing a separate without leave of the Hometown Bank of

Hudson Val. v. Colucci, 127 A.D.3d 702, 703-704 (2d Dep't. 2015). Moreover, even "where a

prior foreclosure action is not formally discontinued, 'the effective abandonment of that action is

discontinuance" 1301(3).'"
a "de facto which militates against dismissal . .. pursuant to RPAPL

MLB Sub I,LLC v. Grimes, 170 A.D.3d 992, 994 (2d Dep't. 2019); see also, Bank of N.Y. Mellon

v. Adam P10tch LLC, 162 A.D.3d 502, 502 (1st Dep't 2018) ("The court properly concluded

that, although a foreclosure action . .. was pending at the time this action was commenced . ..

dismissed"
RPAPL 1301(3) did not require that this action be because "[t]he prior foreclosure

action had effectively been abandoned."). It is also worth noting that the leading treatise in this

area has the following to say about an analogous situation wherein a foreclosure action is

rendered ineffectual by virtue of a tax sale:

If, during the pendency of a foreclosure, a tax sale of the
mortgaged premises occurs, the security is extinguished and
special circumstances sufficient to authorize separate suit on the
note without leave of the court exist. In any event, once a tax lien
foreclosure of the property secured by the mortgage renders the
mortgage lien ineffectual in a pending foreclosure action, the
proper course is to commence an action at law upon the mortgage
note. (Where mortgaged premises are taken by eminent domain, a
foreclosure is rendered moot; therefore, the same principle should

apply as with a property lost to a tax lien foreclosure.)

1 Bergman on New York Mortgage Foreclosures § 7.12 (2019).

Defendants'
Nor are RPAPL § 1301 arguments aided by Plaintiff's as-of-right appeal or

Action"
the "Second Foreclosure referenced by Defendants in their memorandum of law. Def.

Br. at 16. As established above, Plaintiff has not appealed the dismissal of itsforeclosure claims,

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pending,"
and so Defendants cannot in good faith represent that such claims are "currently even

if the Prior Action has not been disposed. Moreover, it is compl

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Andrew S Borrok Track Judge’s New Case

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Document Filed Date

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Case Filing Date

July 17, 2019

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Motion-Secondary: 31 East 28th Street Note Buyer Llc v. Jack Terzi, Hagai Laniado

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