Opinion
1193 CA 15-00660
11-13-2015
BAC HOME LOANS SERVICING, LP, Formerly Known as Countrywide Home Loans Servicing, LP, Plaintiff–Respondent, v. Alexander J. McCOMBIE, III, Defendant–Appellant, New York State Department of Taxation and Finance, et al., Defendants.
Law Office of Thomas R. McCarthy, Liverpool (G. Winston Delong of Counsel), for Defendant–Appellant. Bryan Cave LLP, New York City (Robert Rothberg of Counsel), for Plaintiff–Respondent.
Law Office of Thomas R. McCarthy, Liverpool (G. Winston Delong of Counsel), for Defendant–Appellant.
Bryan Cave LLP, New York City (Robert Rothberg of Counsel), for Plaintiff–Respondent.
Opinion
MEMORANDUM:
Plaintiff commenced this action to foreclose on a mortgage that was secured by property owned by Alexander J. McCombie, III (defendant). Defendant appeals from an order that, inter alia, granted plaintiff's motion seeking summary judgment on the relief sought in the complaint and dismissal of the counterclaims.
We note at the outset that the order was subsumed in a judgment of foreclosure and sale that was subsequently entered. While the appeal properly lies from the judgment, we exercise our discretion to treat the notice of appeal as valid and deem the appeal to be from the judgment (see CPLR 5520 [c]; Kovalsky–Carr Elec. Supply Co., Inc. v. Hartford Cas. Ins. Co., 130 A.D.3d 1534, 1534, 14 N.Y.S.3d 253). We further note that, on appeal, defendant challenges the order only insofar as it granted that part of plaintiff's motion seeking summary judgment dismissing the counterclaims. We therefore deem abandoned any contention by defendant with respect to the order insofar as it granted the relief sought in the complaint (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745).
Contrary to defendant's contention, we conclude that Supreme Court properly granted that part of plaintiff's motion for summary judgment dismissing the first counterclaim, which alleges that plaintiff was negligent in its dealings with defendant after he defaulted. The relationship between the parties is a contractual one between plaintiff as mortgagee and defendant as mortgagor (see Beckford v. Empire Mut. Ins. Group, 135 A.D.2d 228, 233, 525 N.Y.S.2d 260), and plaintiff owed defendant no legal duty independent of the mortgage (see Niagara Foods, Inc. v. Ferguson Elec. Serv. Co., Inc., 111 A.D.3d 1374, 1376, 975 N.Y.S.2d 280, lv. denied 22 N.Y.3d 864, 2014 WL 1243559). Plaintiff was under no obligation under the mortgage to grant defendant's requests for a short sale or a deed in lieu of foreclosure after defendant defaulted on his loan payments (see Home Sav. of Am. v. Isaacson, 240 A.D.2d 633, 633, 659 N.Y.S.2d 94; see also Wells Fargo Bank, N.A. v. VanDyke, 101 A.D.3d 638, 638, 958 N.Y.S.2d 331).
The court also properly granted plaintiff's motion with respect to the second counterclaim, which seeks punitive damages arising from the parties' respective financial situations following the financial crisis of 2007–2008. Defendant cannot recover punitive damages because he fails “to assert an underlying [counterclaim] upon which a demand for punitive damages can be grounded” (Roconova v. Equitable Life Assur. Socy. of U.S., 83 N.Y.2d 603, 616, 612 N.Y.S.2d 339, 634 N.E.2d 940). Moreover, defendant cannot assert a counterclaim against plaintiff under the statute that created the Troubled Asset Relief Program ( [TARP] 12 U.S.C. § 5211 et seq.), inasmuch as he has no private right of action against plaintiff under TARP (see Ruotolo v. Fannie Mae, 933 F.Supp.2d 512, 523 [S.D.N.Y.], appeal dismissed ––– F.3d –––– [June 5, 2013] ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.