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Emigrant Bank v. Boleslawski

Supreme Court, New York County

September 5, 2013

Emigrant Bank f/k/a EMIGRANT SAVINGS BANK and EMIGRANT MORTGAGE COMPANY, INC., Plaintiffs,
v.
Eugene Boleslawski, Defendant.

Unpublished Opinion

Plaintiff: Belkin Burden Wenig & Goldman, LLP.

Defendant: Keith Cornell, Esq.

DORIS LING-COHAN, J.

Plaintiff's motion to amend the complaint to add defendant's counsel as an additional defendant is denied, for the reasons stated below.

Background

The complaint herein alleges, inter alia, that defendant intentionally defrauded plaintiff-lenders by concealing the fact that a mortgage held by defendant was already satisfied, when plaintiffs paid defendant $750, 000 to satisfy a mortgage on the same property. Defendant denies plaintiff's allegations.

Defendant held two separate mortgages on undeveloped property at Perrins Peak, in Stony Point, New York, one for $383, 000 and one for $500, 000. The fee owners and debtors in each case were nonparties John B. Quattrocchi and Ann M. Quattrocchi.

Defendant also held a mortgage for $366, 000 on premises at 100 Bucksberg Road, Tomkins Cove, New York, also owned and mortgaged by the Quattrocchis. The Quattrochis, it appears, wanted the defendant out of the picture as a creditor, and sought to refinance all of their debt, that was held by the defendant. The sum of all of the mortgage loans totaled $1, 249, 000.

Subsequently, defendant received payment of $724, 942.11 from plaintiffs, and a day later received a payoff from IndyMac Bank, in the sum of $495, 961.43, in exchange for which he authorized his attorney to deliver a satisfaction on the Perrins Peak property to both lenders. Plaintiffs maintain that if they had known that another payment and satisfaction had been given on the Perrins Peak property, they never would have agreed to the loan and paid off the Quattrocchis' obligation. The two payments made by plaintiffs, to the Quattrocchis totaled $1, 220, 903.54. According to defendant, this sum, short of the $1, 249, 000 owed to defendant, when supplemented by an additional payment coming from a Quattrocchi family member, paid off all of the Quottrocchi obligations, on all three properties, in accord with defendant's expectations.

The instant motion seeks leave to file and serve a supplemental summons and an amended complaint to add as defendants, Ned Kopald and Kopald and Kopald, P.C., the former being defendant's attorney, and the latter being defendant's attorney's law firm. Plaintiffs' application is based on its allegation that defendant could not have accomplished the fraud perpetrated on them, without the active participation of defendant's lawyer and his firm, in his failure to disclose to plaintiffs that another payment had been received and another mortgage satisfaction already issued. Defendant opposes the motion.

Discussion

"Motions to amend pleadings are to be liberally granted (CPLR 3025 [b]), absent prejudice or surprise, but such leave should not be granted upon mere request, without appropriate substantiation'". Guzman v. Mike's Pipe Yard, 35A.D.3d 266 (1st Dept. 2006) (citation omitted). Here, substantiation is lacking, in that nearly all of the allegations in plaintiffs' supporting papers are conclusory with regard to Kopald's fault, in that they assume that defendant is at fault and, therefore, that Kopald must have conspired with him.

Defendant expected to receive payment of approximately $1, 250, 000 from the satisfaction of three mortgages that defendant held on two properties. That, in fact was the final result, and it is not apparent that defendant or Kopald could derive anything that they were not clearly entitled to, as a product of the alleged conspiracy. It is not made clear in the submissions, whether plaintiffs' difficulties are the result of learning that their security in the Quattrocchi property is subordinate to another creditor. If such is the difficulty, it may have more to do with plaintiffs' failure to record the mortgage on Perrins Peak ...


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