Opinion
2013-02-6
BANK OF AMERICA, N.A., respondent, v. KESO SAGG, LLC, et al., appellants, et al., defendants.
Meister Seelig & Fein LLP, New York, N.Y. (Stephen B. Meister of counsel), and Jaspan Schlesinger LLP, Garden City, N.Y., for appellants (one brief filed). Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Robert A. Spolzino, Daniel F. Flores, and Kathleen A. Daly of counsel), for respondent.
Meister Seelig & Fein LLP, New York, N.Y. (Stephen B. Meister of counsel), and Jaspan Schlesinger LLP, Garden City, N.Y., for appellants (one brief filed). Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Robert A. Spolzino, Daniel F. Flores, and Kathleen A. Daly of counsel), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.
In an action to foreclose a mortgage, the defendants Keso Sagg, LLC, and Keso Sagg 2, LLC, appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated March 28, 2011, as granted that branch of the plaintiff's motion which was pursuant to CPLR 3211(a)(1) and (7) to dismiss the counterclaims and affirmative defenses insofar as asserted against it by Keso Sagg, LLC, and Keso Sagg 2, LLC, and granted that branch of the plaintiff's motion which was to sever the foreclosure action from any other cross claims pursuant to CPLR 603, and KMS Holdings, LLC, appeals from so much of the same order as granted that branch of the plaintiff's motion which was pursuant to CPLR 3211(a)(3) to dismiss its counterclaims and affirmative defenses on the ground that it lacks standing to intervene.
ORDERED that the appeal by KMS Holdings, LLC, is deemed withdrawn, without costs or disbursements, pursuant to a letter dated September 28, 2012; and it is further,
ORDERED that the order is affirmed insofar as appealed from by the defendants Keso Sagg, LLC, and Keso Sagg 2, LLC, with costs.
A CPLR 3211(a)(1) motion to dismiss based on documentary evidence may be appropriately granted “only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law” ( Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190;see Suchmacher v. Manana Grocery, 73 A.D.3d 1017, 900 N.Y.S.2d 686;Fontanetta v. John Doe 1, 73 A.D.3d 78, 83, 898 N.Y.S.2d 569).
Here, the plaintiff, Bank of America, N.A., by its submission of, inter alia, the operating agreements of the defendants Keso Sagg, LLC, and Keso Sagg 2, LLC (hereinafter together the appellants), utterly refuted the appellants' allegation that it knew or should have known that their managing member lacked actual authority to mortgage the appellants' property. Accordingly, the Supreme Court properly directed the dismissal of the appellants' counterclaims and affirmative defenses pursuant to CPLR 3211(a)(1).
The appellants' remaining contentions have been rendered academic, or are without merit.