The opinion of the court was delivered by: LEONARD D. WEXLER
Plaintiff, Westnau Land Corp. ("plaintiff"), brings this action against defendant, United States Small Business Administration ("defendant" or "SBA"), pursuant to 28 U.S.C. § 2410 and § 1504(1) of the New York Real Property Actions and Proceedings Law, to quiet title on the premises known as 1279 Sycamore Avenue, Bohemia, Suffolk County, New York (the "premises"). The action was removed to this Court, pursuant to 28 U.S.C. §§ 1346(a), 1444, 1446, and 2410, by defendant, an agency of the United States, which holds a mortgage on the premises.
The following material facts are not in dispute. On October 17, 1973, 423 Cooper Road Corporation (the "corporation"), by its president, Dominick Marcotrigiano, executed and delivered a note to Manufacturers Hanover Trust Company/Suffolk, N.A. ("MHT") whereby the corporation promised to pay the sum of $ 300,000.00 plus interest at the rate of eleven percent per annum with interest and principal in the amount of $ 5,137.00 payable monthly, with the balance due on October 17, 1980. As collateral security for the payment of the note, Dominick and Frances Marcotrigiano (the "Marcotrigianos") executed, acknowledged, and delivered to MHT a guaranty whereby they guaranteed payment of the note made by the corporation. To secure the guaranty, the Marcotrigianos executed, acknowledged, and delivered to MHT a mortgage of $ 300,000.00 on the premises, which by its terms became due and payable in full on October 17, 1980.
On or about September 27, 1978, MHT assigned the note, guaranty, and mortgage to defendant. The assignment of mortgage was recorded in the office of the Suffolk County Clerk on October 19, 1978. On December 16, 1978, the Marcotrigianos transferred title to the premises by deed to plaintiff.
It is undisputed that no payments have been received by defendant after the transfer of the premises to plaintiff. However, plaintiff asserts that it "has [not] promised to make payments on account of said mortgage and, upon information and belief, the enforcement of said mortgage is barred by both the New York State statute of limitations as well as Section 2415, Title 28, United States Code." Complaint at 3. Plaintiff contends that, because the six-year statute of limitations period has run on the underlying obligation, defendant is precluded by 28 U.S.C. § 2415(a) (" § 2415(a)") and § 213(4) of the New York Civil Practice Law and Rules ("CPLR § 213(4)") from foreclosing on the mortgage.
Defendant argues that there is no statute of limitations applicable to this federal mortgage lien and, moreover, that the United States Small Business Administration is not a suable federal agency. Additionally, defendant counterclaims for all money due and owing on the mortgage plus interest.
Currently, plaintiff moves: (1) to amend the complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure to designate defendant as "United States Small Business Administration, an agency of the United States of America"; (2) pursuant to Rule 56(a) for a judgment based on the statute of limitations barring defendant and all others claiming under it from all claims for an estate in the premises; and, (3) for the dismissal of defendant's affirmative defenses and counterclaim pursuant to Rule 56(b). Defendant cross-moves to have plaintiff's action dismissed pursuant to Rule 56(b).
For the reasons that follow, plaintiff's motion to amend the complaint is granted, plaintiff's motions pursuant to subsections (a) and (b) of Rule 56 are denied, and defendant's motion pursuant to Rule 56(b) is granted.
A. Plaintiff's Motion to Amend Complaint
As stated, plaintiff seeks to amend its complaint to designate defendant as "United States Small Business Administration, an agency of the United States of America." Rule 15(a) of the Federal Rules of Civil Procedure directs that where leave of the court is required to amend a pleading, "leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a).
In the case at bar, defendant does not oppose plaintiff's request. In this district, failure to serve and file papers in opposition to a motion allows this Court to grant that motion by default. Rule 3(b) of the Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York. Moreover, the Court can discern no reason for refusing plaintiff's request at this stage in the proceedings. See ...