[*1]
Hudson Val. Fed. Credit Union v Rakoff
2014 NY Slip Op 51042(U) [44 Misc 3d 1206(A)]
Decided on July 8, 2014
Supreme Court, Dutchess County
Pagones, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 8, 2014
Supreme Court, Dutchess County


Hudson Valley Federal Credit Union, Plaintiff,

against

Martin D. Rakoff; ZR CONTINENTAL CORP. d/b/a CONTINENTAL GROUP; ADC DEVELOPMENT CORP,; CONCORD POOLS, LTD.; and "JOHN DOES" and "JANES DOES" said names being fictitious parties intended being possible tenants or occupants of premises, corporations, other entities or persons, who claim or may claim, a lien the premises, Defendants.




0080/2014



ANTHONY C. CARLINI, JR., ESQ.



HANDEL & CARLINI LLP



Attorneys for Plaintiff



62A East Main Street



Wappingers Falls, New York 12590



JOSEPH M. DOUGHERTY, ESQ.



HINMAN STRAUB, P.C.



Attorneys for Defendants



121 State Street



Albany, New York 12207


James D. Pagones, J.

Plaintiff moves for an order, pursuant to CPLR 3212, granting it summary judgment and striking the answer of the defendant, Concord Pools, Ltd. Plaintiff also seeks the appointment of a referee to compute and to amend the action's caption to strike the names of defendants "John Does" and "Jane Does."



The following papers were read:



Notice of Motion-1



Affidavit in Support-Exhibits A-D-2-6



Affirmation in Support-Exhibits A-E7-12



Reply Affirmation-Affidavit of Service-13-14



Affidavit in Support of Motion to Dismiss-15



Exhibits A-B-Memorandum of Law in Opposition-16-18



Affidavit of Service19



Upon the foregoing papers, the motion is decided as follows:On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (see Andre v. Pomeroy, 35 NY2d 361 [1974]). The movant must set forth a prima facie showing of entitlement to judgment as matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). Here, the plaintiff has established its prima facie entitlement to foreclosure of a mortgage lien by presenting the subject mortgage, the unpaid note and evidence of a default under the terms thereof.

Consequently, the burden shifts to the defendant to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 49 NY2d 557 [1980]).

In opposition to the motion, defendant Concord Pools, Ltd. asserts that it maintains a mechanic's lien on a property located in Rhineback. By way of background, plaintiff and defendant Martin D. Rakoff entered into a spreader agreement, i.e. a document which extends the reach of a mortgage to other properties and sometimes to new lenders or borrowers. By the terms of the agreement, the mortgage and note encumbering the property located at 159 Barnegat Road, Poughkeepsie, New York 12601 was extended to encumber defendant Martin D. Rakoff's second property, located at 7030 Albany Post Road, Rhinebeck, New York 12572. Defendant Concord Pools, Ltd. asserts that summary judgment must be denied as its mechanic's lien, which was filed on February 9, 2009, is superior to the plaintiff's mortgage lien since the mechanic's lien accrued prior to the spreader agreement, which was filed on April 27, 2011.

The priority of liens is not a defense to a summary judgment motion to foreclose a mortgage (see Dime Sav. Bank, v. Levy, 161 Misc 2d 480 [Sup Ct, Rockland County 1994]). Moreover, as the plaintiff herein has only sought to foreclose as to the Poughkeepsie property and acknowledges that it only seeks to foreclose as to the Poughkeepsie property, it has waived its right to seek a foreclosure as to the Rhinebeck property in this proceeding (see Bankers Trust Co. v. G.H. Equities, Inc., 57 AD2d 601 [2nd Dept 1997]). Thus, any defense asserted by defendant Concord Pools, Ltd. relates solely to the Rhinebeck property is deemed academic.

Based upon the foregoing, plaintiff's motion for summary judgment is granted in its entirety. The new caption of this action shall read as follows:



SUPREME COURT OF THE STATE OF NEW YORK



COUNTY OF DUTCHESS



X



HUDSON VALLEY FEDERAL CREDIT UNION,



Plaintiff,



against-MARTIN D. RAKOFF; ZR CONTINENTAL CORP.



d/b/a CONTINENTAL GROUP; ADC DEVELOPMENT



CORP,; CONCORD POOLS, LTD.,



Defendants.



X

Plaintiff is directed to submit a proposed Order of Reference within thirty (30) days hereof.

The foregoing constitutes the decision of this Court.Dated:July 8, 2014



Poughkeepsie, New York



ENTER

HON. JAMES D. PAGONES, A.J.S.C.