The following papers numbered 1 to 25 were read on this motion by the defendant CitiMortgage, Inc., f/k/a Citicorp Mortgage, Inc., for an order pursuant to CPLR 2221 granting renewal and reargument of CitiMortgage's motion for summary judgment in favor of the defendant and upon renewal and reargument dismissing plaintiff's sixth cause of action based upon plaintiff's deposition testimony which allegedly establishes an account stated; or in the alternative for an order precluding the plaintiffs from introducing payment records at the time of trial by reason of their failure to produce such records as requested at the plaintiff's examination before trial held in August 2012; and the cross-motion of Parkway Village Equities Corp. for an order pursuant to CPLR 6314 vacating the preliminary injunction enjoining Parkway Village from terminating plaintiff's proprietary lease and moving for a judicial sale and compelling plaintiff to file an undertaking in the amount of at least $25,000:

Papers

Numbered [*2]

Notice of Motion-Affirmation-Exhibits-Memo of Law .....1 - 11

Parkway Village Equities Corp.'s Cross-Motion..........12 - 16

Plaintiff's Affirmation in Opposition..................17 - 19

CitiMortgage Reply Affirmation-Exhibits................20 - 25

_____________________________________________________________ ____

The facts of this case are set forth in this court's prior memorandum decision dated March 7, 2011, granting plaintiff's motion for a preliminary injunction and in this court's prior short form order dated April 18, 2011 dismissing the plaintiff's seventh cause of action for failure to state a cause of action.

Plaintiffs, MICHAEL CLARKE and MURIEL CLARKE a/k/a MURIEL POWELL, commenced an action against defendants PARKWAY VILLAGE EQUITIES CORP ("Parkway") and CITICORP N.A. d/b/a/ CITICORP MORTGAGE, INC., and CITIMORTGAGE, INC. ("CitiMortgage"), by service of an order to show cause together with the summons and complaint on November 10, 2010. CitiMortgage served its answer, counterclaims and cross-claims on May 24, 2011. Plaintiff filed a note of issue on November 4, 2011.

Parkway Village is a cooperative corporation consisting of approximately 675 residential units located at 144-17 Grand Central Parkway, Kew Gardens Hills, New York. The plaintiffs are the holders of 119 shares of stock entitling them to use Unit 67GA. The shares were purchased by the plaintiffs in April 1988. The plaintiffs have a loan in the principal amount of $74,220.00 with CitiMortgage secured against the corporation shares held by them. In addition, the plaintiff is responsible for maintenance payments of approximately $1100.00 per month. Plaintiffs contend that since 2007 they have been in continuous disputes with the cooperative corporation, Parkway Village, regarding the amounts that are owed for maintenance. Parkway Village contends that the plaintiffs' account went into arrears in March, 2007. Plaintiffs claim that they have never been provided with a financial accounting by Parkway.

In the sixth cause of action plaintiffs allege that CitiMortgage caused $33,527 to be charged against their account and paid same to defendant Parkway Village. Plaintiffs further allege that CitiMortgage was not entitled to remove said funds from the plaintiffs accounts without plaintiffs' consent. Plaintiffs claim that CitiMortgage undertook to pay Parkway Village an amount for maintenance which they did not owe and that their account with CitiMortgage was wrongfully charged $33,527.

CitiMortgage contends that pursuant to the cooperative loan security agreement it has the right to advance payment, without [*3]the borrower's consent, in order to defend the lender's security interest and to subsequently seek reimbursement from the borrower. In November 2009, after CitiMortgage received notices from Parkway Village of its intent to terminate the shares and foreclose on plaintiffs' lease, CitiMortgage paid Parkway the sum of $24,093.33 to cover the plaintiffs' arrears. In July 2010, a second payment was made by CitiMortgage in the amount of $9,744.70 on account of additional arrears. Plaintiffs' account with CitiMortgage was debited in the total amount of $33,527.07.

By memorandum decision dated March 7, 2011, this court granted the plaintiff's motion for a preliminary injunction to the extent that Parkway was enjoined from taking any action to terminate the subject proprietary lease, to move for judicial or nonjudicial sale, from commencing summary proceedings to evict the plaintiffs or otherwise interfering with plaintiffs' occupancy and possession of the premises on the basis of defaults set forth in the notices to cure, during the pendency of this action. The memorandum stated that the preliminary injunction was conditioned upon plaintiff continuing payments of maintenance and other related costs while the action is pending and filing an undertaking in accordance with CPLR 6312. The amount of the undertaking was directed to be fixed in the order to be settled by the plaintiff on notice to the defendants. To date, said order has not been submitted for settlement.

By decision dated April 18, 2011, this court denied the motion by defendant CitiMortgage to dismiss the plaintiff's sixth cause of action on the ground of failure to state a case of action. The sixth cause of action alleged that Citimortgage wrongfully debited the plaintiffs' account in the amount of $33,527.07 for directly paying said sum to Parkway which the plaintiffs claim they did not owe without consulting or obtaining the consent of the plaintiffs. This Court found that although the documents submitted by CitiMortgage specified their entitlement to pay the plaintiffs' arrears so as to defend their security interest in the premises, the documents submitted by CitiMortgage in support of their motion did not provide an adequate record of payment stating how the arrears in maintenance payments were calculated. This court held that "the documentary evidence submitted by the defendant failed to utterly refute the plaintiffs' allegations that the arrears were not calculated properly and therefore, failed to conclusively establish a defense as a matter of law (citing Rietschel v Maimonides Med. Ctr., 83 AD3d 810 [2d Dept. 2011]).

In April 2012, CitiMortgage moved for summary judgment dismissing the sixth cause of action claiming that the plaintiffs [*4]acquiesced in CitiMortgage's payment to the cooperative, that plaintiffs agreed to reinstate the disbursements made by Citimortgage towards the arrears and that plaintiffs entered into an agreement with CitiMortgage whereby a portion of their monthly payments would be applied towards said disbursements. CitiMortgage contends that the plaintiffs have been reinstating the disbursements for maintenance arrears on account since May 17, 2010. Thus, CitiMortgage contends that the plaintiffs waived any allegation of wrongdoing, ratified the disbursements due and are therefore estopped from asserting claims against the defendant for disbursing sums on arrears to Parkway Village. CitiMortgage also contends that pursuant to the cooperative loan security agreement it has the right to advance payment, without the borrower's consent in order to defend the lender's security interest, and to subsequently seek reimbursement from the borrower.

By decision and order dated June 21, 2012, this Court denied the motion as untimely. This court found that the note of issue was filed on November 4, 2011. Therefore, pursuant to the 120 day rule contained in CPLR 3212(a) and this court's preliminary conference order, the summary judgment motion should have been served by March 4, 2012, whereas the motion was actually served on March 9, 2012. This court held that as the motion was served past the deadline date, the motion was untimely (see Brill v City of New York,2 NY3d 648 [2004]).

In February 2013, CitiMortgage moved for leave to renew and reargue this courts decision dated June 21, 2012. This Court by decision dated April 26, 2013 and entered on May 7, 2013 denied the motion without prejudice on the ground that plaintiffs' attorney was granted leave to withdraw and the matter was stayed for 30 days to permit plaintiff to obtain new counsel.

As the stay has expired, CitiMortgage now moves for an order pursuant to CPLR 2221 granting renewal and reargument of Citimortgage's prior motion for summary judgment in favor of the defendant which was denied for untimeliness, and upon renewal and reargument dismissing plaintiff's sixth cause of action based upon plaintiff's deposition testimony which allegedly establishes an account stated.

In support of the motion, Citimortgage argues that Courts have held that outstanding discovery essential to the motion has been held to be reasonable cause for delay in making a summary judgment motion (citing Greenpoint Props., Inc. v Carter, 82 AD3d 1157 [2d Dept. 2011][significant outstanding discovery may, in certain circumstances, constitute good cause for the delay in [*5]making a motion for summary judgment] Parker v LIJMC-Satellite Dialysis Facility, 92 AD3d 740 [2d Dept. 2012] Kung v Zheng, 73 AD3d 862 [2d Dept. 2010] McArdle v 123 Jackpot, Inc., 51 AD3d 743 [2d Dept. 2008]). Counsel contends that at the time CitiMortgage served the initial motion for summary judgment, the plaintiffs had failed to produce any records of their maintenance payments which would controvert the amount calculated by the cooperative apartment as arrears due and owing. Counsel argues that as there was a significant amount of discovery outstanding at the time the summary judgment motion was originally filed, including the plaintiffs' failure to appear for depositions, they had a reasonable excuse for serving the motion beyond the 120 days. The defendant had also moved to strike the plaintiffs' note of issue on the ground that the plaintiffs failed to appear for a deposition and failed to provide responses to outstanding demands for discovery and inspection. Thus, in the June 21, 2012 order, this Court granted the motion to strike the note of issue unless the plaintiff appeared for a deposition and provided responses on or before August 10, 2012.

The plaintiff, who has submitted opposition to the motion, pro se, has not opposed the branch of the motion for leave to renew and reargue the prior decision of the court that was denied as untimely. Therefore, this court finds that as there was significant discovery outstanding at the time the motion for summary judgment was filed, CitiMortgage has shown good cause for the failure to file the motion within the statutory time limitations and therefore, this Court finds that the branch of this Court's decision dated June 21, 2012, denying the motion for summary judgment as untimely is vacated (see Grochowski v Ben Rubins, LLC, 81 AD3d 589 [2d Dept. 2011] Kung v Zheng, 73 AD3d 862 [2d Dept. 2010] Richardson v JAL Diversified Mgt., 73 AD3d 1012 [2d Dept. 2010] Tower Ins. Co. of NY v Razy Assoc., 37 AD3d 702 [2d Dept. 2007]).

Plaintiff, Michael Clarke, age 61, a computer operator for Chase Bank was deposed on August 10, 2012. He testified that he suffered a stroke in July 2003. He is presently receiving social security disability insurance of $2,000.00 per month. He lives with his 30 year old son and a significant other, Veruschka Urquhart. He testified that the basis of his lawsuit is that CitiMortgage is charging him for maintenance that he has already paid. He states that his mother owns the apartment with him, but she lives in Florida, suffers from dementia and is being cared for by another son. He states that they bought the unit and the shares of stock over 20 years ago. He states that in his lawsuit he is questioning the amount of maintenance arrears owed to CitiMortgage. His present monthly maintenance is $1100.00. He [*6]refinanced with CitiMortgage and took a co-op loan secured by a security agreement for $74,000. He states that his mother has been paying the monthly installments to CitiMOrtgage on the co-op loan and he has been paying the maintenance since 1986. He did not bring copies of the checks he has paid for maintenance. He stated that there came a time that the co-op notified him that he was in arrears on his maintenance and he learned that because of the arrears CitiMortgage paid approximately $30,000 to Parkway Village for arrears on maintenance and then added said sum to the amount he owed on the mortgage. He stated that he knows he missed some maintenance payments and assessments. He testified that he does not owe the full amount of over $30,000 in arrears which was assessed against his account for maintenance. He stated that he always paid the maintenance and that the monthly charges from Parkway would vary from month to month. He also testified that he was told by a manager at Parkway to stop making maintenance payments. He stated tha he had paid $7,000 toward the arrears and the next month he was told that he still owed $3,000. He also testified that he had been paying $150.00 per month towards the arrears for four years He also stated that from the date that the court ordered that he pay monthly maintenance charges he is only on payment behind. He stated that from July 1 2011, to date, he made every payment other than one.

Veruschka Urquat, age 69, was deposed on August 10, 2012,. She stated that she has been with Michael 34 years they have a 30 year old son. She states that she took charge of making the monthly maintenance payments. She paid maintenance based upon the monthly statement sent by Parkway which included assessments and late fees. She stated that there were months she could not pay the full balance, but she would make payments on arrears when she could. She testified that she believed there was a discrepancy between what the statements said and what she believed she owed. She made calls to the management regarding the discrepancy . She stated that in June 2008 she paid $7000.00 in arrears which was the amount she felt covered the entire balance. In January 2009 she wrote to Parkway stating that the amount charged was not what she owed. She stated she has copies of her checks from 2008. She said in 2009 and 2010 and until the thee order of July 2011. Management was not accepting checks. However she stated that she made all maintenance payments since the court memorandum decision with the exception of one payment. As of the date of the deposition the co-op was claiming that they were in arrears a total of $14,071. She stated that she received a notice that they were going to be evicted.

CitiMortgage contends that Michael testified that he agreed to reinstate the maintenance payments paid to Parkway by [*7]CitiMortgage. Further CitiMOrtgage argues that the plaintiff has not produced any evidence establishing that CitiMortgage improperly disbursed maintenance on their account to protect its security interest from termination. CitiMortgage alleges that there is nothing in evidence to controvert the Cooperative Corporation's accounting which was the basis of their payment to Parkway Village.

In further support of the motion, movant submits an affidavit from Jeff Becker, Document Control Officer at CitiMortgage Inc. Mr. Becker states as follows: On December 26, 2003, plaintiffs Michael Clarke and Muriel Clarke refinanced with CitiMortgage. In connection with the refinancing, plaintiff executed and delivered to CitiMortgage a recognition agreement as well as a cooperative loan note and security agreement in the principal amount of $74,220.00. As stated above, the agreement states that if the lender has to defend its rights under the note or security agreement, then any money the lender has to pay (including reasonable attorneys fees) shall be added to the amount owed to the lender. Based upon the fact that the plaintiffs failed to make up the arrears after being sent notices to cure in 2008 and 2009, CitiMortgage elected to pay the maintenance arrears. He also states that the plaintiffs agreed to repay the maintenance arrears advanced in monthly installments of $150.00 together with their monthly loan payments. According to the account history, the plaintiffs have made regular payments to reinstate the maintenance arrears commencing on or about May 17, 2010.

Counsel asserts that the evidence shows that plaintiffs spoke to Citimortgage by phone and made arrangements to reinstate the disbursements made to Parkway Village by CitiMortgage for unpaid maintenance on account. Plaintiffs allegedly agreed to pay in good faith the sum of $150.00 per month while they were in litigation with the co-op. Movant alleges that plaintiffs entered into an agreement with CitiMortgage whereby a portion of their monthly payments would be applied to said disbursements. Movant claims that as plaintiffs paid on the account for a substantial time, they have set forth an account stated that assumes the existence of some indebtedness between the parties (citing Levine v Harriton & Furrer, LLP, 92 AD3d 1176 [3d Dept. 2012][an account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due] Ross v Sherman, 57 AD3d 758 [2d Dept. 2008][an account stated assumes the existence of some indebtedness between the parties, or an express agreement to treat a statement of debt as an account stated] Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868 [3d Dept. [*8]1993][the agreement as to an account stated may be express or implied from the retention of an account rendered for an unreasonable period of time without objection and from the surrounding circumstances]).

Further, CitiMortgage asserts that partial payments are considered an acknowledgement of correctness of account (citing Chisholm-Ryder Co. v Sommer & Sommer, 70 AD2d 429 [4th Dept. 1979][an agreement may also be implied if the debtor makes partial payment. The partial payment is considered acknowledgment of the correctness of the account]).

Thus, Citimortgage contends that based on plaintiffs making reinstatement payments over a continuous period of time, the plaintiffs made an agreement and an account stated for the disbursements made to CitiMortgage. Therefore, CitiMortgage contends that it has shown that an account stated was reached whereby plaintiffs agreed to reinstate the maintenance disbursed on their account. CitiMortgage contends therefore, that the sixth cause of action should be dismissed because the plaintiffs waived any allegation of wrongdoing, ratified the disbursements due and owing to CitiMortgage and are therefore estopped from asserting claims of wrongdoing against CitiMortgage.

With respect to the branch of the motion to preclude, Citimortgage seeks to preclude the plaintiffs from introducing payment records at the time of trial by reason of their failure to produce such records as requested at the plaintiff's examination before trial held in August 2012.

In opposition to the motion, plaintiff states that he has not received an accurate accounting regarding maintenance since 2007. He states that since 2010 he has been paying $150 per month, "as I believe that I may owe some maintenance arrears but I am not sure exactly how much." He states that he is sure he did not owe $33,527.00 in September 2012. He states that he has made numerous payments in the last several years that have been posted but do not show up on any of the fragmented accountings he has received. He states that he never agreed to an account stated but is interested in settling the matter. He also states that due to his medical condition and financial situation he needs additional time to provide proof of his recent payments towards the maintenance.

Plaintiffs' counsel opposed the motion on the ground that there is a question of fact as Citimortgage has never submitted an accurate accounting of the maintenance arrears upon which it based its payment to Parkway village. Further counsel argues that [*9]although the plaintiffs made periodic payments of $150.00 per month, no documentary evidence has been provided stating that the plaintiff agreed that these partial payments were a concession to the full amount of arrears allegedly owed to Parkway Village. Plaintiff also contends that there is a triable issue of fact as to whether the $150.00 monthly payments were to be applied to arrears as opposed to current maintenance charges. The defendant has also attached copies of certain checks he made to pay maintenance and arrears.

Parkway Village cross-moves for an order vacating the preliminary injunction. Counsel, Steven R. Vaccaro, Esq. states that plaintiffs' account went into arrears in March 2007. He alleges that from time to time the plaintiffs made payments towards the arrears although never satisfying the full outstanding amount. Counsel states that Parkway Village sent plaintiffs a copy of the occupant ledger on July 2, 2009 and requesting copies of cancelled checks as proof of payment to ensure proper credit. Counsel also states that to date the plaintiffs have not provided sufficient proof and or cancelled checks to substantiate full payment of arrears. Counsel also states that this court rendered a memorandum decision dated March 7, 2011 requiring plaintiff to make maintenance payments while a preliminary injunction on terminating the plaintiffs' proprietary lease was in effect.

In support of the cross-motion, Parkway Village submits an affidavit from Lindy Rodriguez, an Assistant Manager for Metro Management Development, Inc., the managing agent for Parkway Village. Mr. Rodriguez states that his review of the plaintiffs' tenant profile indicates that as of the end of July 2011, the plaintiff's total arrears were $10,696,85. He states that since the preliminary injunction was issued plaintiff failed to pay maintenance for the months of August 2011, November 2011, April 2012, September 2012, December 2012, February 2013 and June 2013 and the balance due as of July 3, 2013 was $17,956.21. Therefore, Parkway Village argues that the order granting a preliminary injunction should be vacted allowing Parkway to take action to terminate the subject proprietary lease, move for a judicial or non-judicial sale and commence a summary proceeding to evict the plaintiffs from the cooperative unit. Counsel contends that pursuant to CPLR 6314 a court has the discretion in deciding whether to vacate the order granting the preliminary injunction.

Upon review of the defendant CitiMortgage's motion, the plaintiff's opposition and the defendant's reply thereto this court finds as follows: [*10]

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

Here, this court finds that defendant CitiMortgage has failed to demonstrate, prima facie, that an account stated was reached whereby plaintiffs agreed to reinstate the maintenance disbursed on their account. Further, CitiMortgage has failed to demonstrate as a matter of law that it is entitled to summary judgment dismissing the sixth cause of action on the ground that plaintiffs waived any allegation of wrongdoing, ratified the disbursements due and owing to CitiMortgage. As stated above, "an account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due" (J.B.H., Inc. v. Godinez, 34 AD3d 873 [3d Dept. 2006] Further, "a cause of action for account stated will fail where either no account has been presented or there is any dispute regarding the correctness of the account" (J.B.H., Inc. v Godinez, supra. citing M & A Constr. Corp. v McTague, 21 AD3d 610 [3d Dept. 2005]). Although an agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time or makes partial payment on the account, here the plaintiffs admit they are in arrears with respect to maintenance and admit to making partial payments with respect to the arrears owed, but the plaintiffs have continuously disputed and objected to the correctness of the account items and balance stated by Parkway Village to be due. Further, there is a question of fact as whether defendant established the existance of an account stated as Citimortgage has not submitted sufficient evidence documenting the accounting of the maintenance arrears upon which it based its payment to Parkway Village. In addition, the defendant has failed to show by documentary evidence that the plaintiff agreed that the partial monthly payments were a concession to the full amount of arrears allegedly owed to Parkway Village.

Accordingly, this Court finds that there are triable issues of fact with respect to the amount of arrears owed by the plaintiffs and the amounts paid by them on account which require a determination by the trier of fact.

That branch of the defendant's motion for an order precluding the plaintiffs from introducing payment records at the time of trial by reason of their failure to produce such records [*11]as requested at the plaintiff's examination before trial held in August 2012 is granted to the extent that plaintiffs shall be precluded from offering said records into evidence unless they produce the requested payment records which are in their possession or control within 30 days of service of a copy of this order with notice of entry thereof.

The cross-motion made by Parkway Village is denied without prejudice to a further application for the same relief sought by motion on notice (CPLR 2221, 2212[a]). A notice of cross-motion is an appropriate procedural vehicle only when seeking relief against the moving party on a motion (CPLR 2215).

However, this court notes that the memorandum decision dated March 7, 2011, which granted the plaintiffs' motion for preliminary injunction against the termination of their proprietary lease, required the settlement of an order. A review of the court records indicates that to date an order has not been submitted. Pursuant to 22 NYCRR § 202.48 proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted. The failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless good cause is shown for the delay (see Russo v Russo, 289 AD2d 467 [2nd Dept. 2001] Dime Sav.Bank of New York, FSB v Anzel, 232 AD2d 446 [2nd Dept. 1996] Kay Management Group, Inc. V Lane, 216 AD2d 532 [2nd Dept. 1995] Parisi v McElhaton, 209 AD2d 495 [2d Dept. 1994]).

Accordingly, based upon the foregoing, it is hereby

ORDERED, that the motion by defendant CitiMortgage for summary judgment dismissing the sixth cause of action is denied.

Dated: January 7, 2014

Long Island City, NY

______________________________ [*12]

ROBERT J. MCDONALD

J.S.C.