Opinion
9012N Index 850003/16
04-16-2019
FYM MILLBROOK, LLC, Plaintiff–Appellant, v. Sarah WEINBERG, et al., Defendants–Respondents.
Kriss & Feuerstein LLP, New York (Michael J. Bonneville of counsel), for appellant.
Kriss & Feuerstein LLP, New York (Michael J. Bonneville of counsel), for appellant.
Renwick, J.P., Gische, Kapnick, Moulton, JJ.
Summary judgment was properly denied since triable issues of fact exist as to the identity of the indebted party. Although plaintiff claimed that the party named as maker on the note was a mere scrivener's error, it did not bring a claim for reformation of the note, nor did it provide clear and convincing evidence of such error (see Nash v. Kornblum, 12 N.Y.2d 42, 46, 234 N.Y.S.2d 697, 186 N.E.2d 551 [1962] ; cf. VNB N.Y. Corp. v. Chatham Partners, LLC, 125 A.D.3d 517, 5 N.Y.S.3d 367 [1st Dept. 2015], lv denied 25 N.Y.3d 910, 2015 WL 3605177 [2015] ). Without evidence from someone with direct knowledge of the preparation of the loan documents, or any other documentary evidence that the parties at the time of the contracting intended solely that defendant, in her individual capacity, was the maker of the note and the named recipient of the loan proceeds, plaintiff has not made a prima facie showing that it was entitled to judgment of foreclosure on the debt. The motion court correctly rejected plaintiff's claim that the mortgage was sufficient to dispel any factual issues regarding the maker of the note.
We have considered plaintiff's remaining arguments and find them unavailing.