Opinion
Index No.48937/09
04-06-2010
GRAND BANK FOR SAVINGS, FSB PROFIT SHARING PLAN Plaintiff v. ARAUJO FAMILIA, INC., NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, ET. AL. Defendants
ATTORNEY FOR PLAINTIFF LARRY T. POWELL, ESQ. DAVIDSON FINK, LLP 28 EAST MAIN STREET, SUITE 1700 ROCHESTER, NY 14614 (585) 760-8218 ATTORNEY FOR DEFENDANT ARAUJO FAMILIA, INC., PHILIP J. DE BELLIS, ESQ. 220 MONT AUK HIGHWAY P O BOX 346 SPEONK, NY 11972 ATTORNEY FOR NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE ALAN GITTER, ESQ. 300 MOTOR PARKWAY, SUITE 125 HAUPPAUGE, NY 11788
SHORT FORM ORDER PRESENT: Motion No: 01/Motd
Submit Date: 04/06/10
ATTORNEY FOR PLAINTIFF
LARRY T. POWELL, ESQ.
DAVIDSON FINK, LLP
28 EAST MAIN STREET, SUITE 1700
ROCHESTER, NY 14614
(585) 760-8218
ATTORNEY FOR DEFENDANT
ARAUJO FAMILIA, INC.,
PHILIP J. DE BELLIS, ESQ.
220 MONT AUK HIGHWAY
P O BOX 346
SPEONK, NY 11972
ATTORNEY FOR NEW YORK STATE
DEPARTMENT OF TAXATION AND
FINANCE
ALAN GITTER, ESQ.
300 MOTOR PARKWAY, SUITE 125
HAUPPAUGE, NY 11788
Upon the papers submitted (Notice of Motion, Opposition and Reply), it is hereby
ORDERED that the motion for summary judgment is denied without prejudice to renew after a conference; and it is further
ORDERED that a conference is scheduled for Tuesday, May 11, 2010, at 9:30 a.m., to discuss the issues and possible resolution thereof.
The Plaintiff has established the existence of a valid mortgage and default on payment, which established its prima facie case on this motion for summary judgment. Capstone Business Credit, LLC v. Imperia Family Realty, LLC, 70 A.D.3d 882. However, the Defendant raises an issue of misrepresentation, in that the con tract indicated that there were no pending proceedings or administrative challenges concerning the property. It appears that there was a pending reassessment of the property taxes, which did result in a three fold increase from $9,866.10 to $27,034.68. Even assuming that there was no specific representation of the amount of taxes or such evidence would be excluded by the "no oral representation" clause [see e.g. Daly v. Kochanowicz 67 A.D.3d 78], the notification of such pending review may raise an issue of fact as to whether there was a misrepresentation, whether such is a material misrepresentation or fraudulent, so as to be a defense to the claim. See P.T. Bank Central Asia v. ABN AMRO Bank N.V., 301 A.D.2d 373; Stahl Equities Corp. v Prudential Bldg. Maintenance Corp., 95 A.D.2d 222.
It appears to have been decreased after a challenge.
The foregoing constitutes the Order of this Court. Dated: April 6, 2010
Riverhead, NY
/s/_________
HON. MARK D. COHEN, J.S.C.