Banc of America Commercial Finance Corporation, Formerly Known as NationsCredit Commercial Corporation, Plaintiff,
Matthew Issacharoff et al., Defendants.
Davidoff & Malito L. L. P., New York City (Stuart Perlmutter of counsel), for plaintiff.
Morrison Cohen Singer & Weinstein, L. L. P., New York City (Fred H. Perkins and Edward P. Gilbert of counsel), for Amnon Issacharoff, defendant.
Stephen G. Crane, J.
Do you remember the commercial featuring the elderly woman asking, in high dudgeon, " Where's the beef?" This case presents the same question.
In this foreclosure action, plaintiff moves,  pursuant to CPLR 3211 (a) (7) and (b), to dismiss defendant Amnon Issacharoff's (A. Issacharoff) fourteenth affirmative defense and first counterclaim (fraud), fifteenth affirmative defense and second counterclaim (breach of the covenant of good faith and fair dealing), sixteenth affirmative defense and third counterclaim (rescission), seventeenth affirmative defense and fourth counterclaim (violation of General Business Law § 349), and claims for punitive damages. The Court grants plaintiff's motion to the extent of dismissing the seventeenth affirmative defense and fourth counterclaim and the demand for punitive damages, and otherwise denies the motion.
Defendants Matthew Issacharoff (M. Issacharoff) and Zafar Amin (Amin) were officers and shareholders of Akamin Trading Company, Ltd. (Akamin), a wholesaler of uniforms. A. Issacharoff was a shareholder of Akamin. Plaintiff is a Delaware corporation authorized to do business in New York and, until August 1999, was known as NationsCredit Commercial Corporation.
The following allegations are taken from plaintiff's complaint. On or about February 13, 1998, plaintiff made available to Akamin a revolving loan and credit facility of up to $3,500,000. To evidence this indebtedness, Akamin executed and delivered a loan and security agreement. In consideration of plaintiff making the revolving loan and credit facility available to Akamin, M. Issacharoff and Amin executed and delivered a guaranty. They jointly and severally, unconditionally and irrevocably guaranteed the payment when due of any obligations and liabilities to plaintiff from Akamin.
As additional security, A. Issacharoff executed and delivered to plaintiff a collateral mortgage (the Mortgage) covering the premises known as 21 West 95th Street, New York, New York. The Mortgage was limited to $600,000 and provided that the mortgagee shall be entitled to recover its reasonable attorneys' fees, costs and disbursements in any action or proceeding to enforce the Mortgage.
Akamin, M. Issacharoff, Amin, A. Issacharoff and plaintiff later entered into a forbearance agreement dated May 10, 1999. It provided, among other things, that plaintiff would forbear from enforcing its rights and remedies against M. Issacharoff, Amin, A. Issacharoff and others during its term, provided that, in its sole discretion, plaintiff may declare the forbearance period terminated upon certain events of default. M. Issacharoff, Amin, A. Issacharoff and certain other persons acknowledged, among other things, that they had no claims, defenses or offsets against plaintiff, and if Akamin or any obligor defined in the forbearance agreement breached or defaulted with respect to any agreement, covenant, or term of the forbearance agreement, after notice and ...