Prompt Mortgage Providers of North America, LLC, et al., respondents,
Simon Zarour, appellant, et al., defendants. Index No. 33483/12
- January 17, 2017
C. DILLON, J.P. SHERI S. ROMAN SYLVIA O. HINDS-RADIX BETSY
DECISION & ORDER ON MOTION
by the appellant for leave to reargue an appeal from a
judgment of foreclosure and sale of the Supreme Court,
Rockland County, dated July 20, 2015, which was determined by
decision and order of this Court dated March 8, 2017.
the papers filed in support of the motion and the papers
filed in opposition thereto, it is
that the motion is granted and, upon reargument, the decision
and order of this Court dated March 8, 2017 (see Prompt
Mtge. Providers of N. Am., LLC v Zarour, 148 A.D.3d
849), is recalled and vacated, and the following decision and
order is substituted therefor:
Allen A. Kolber, Suffern, NY, for appellant.
David H. Singer & Associates, LLP, New York, NY
(Christopher S. McCann of counsel), for respondents.
action to foreclose a mortgage, the defendant Simon Zarour
appeals, as limited by his brief, from so much of a judgment
of foreclosure and sale of the Supreme Court, Rockland County
(Walsh II, J.), dated July 20, 2015, as, upon so much of an
order of the same court dated October 29, 2014, as granted
that branch of the plaintiffs' motion which was for
summary judgment on the complaint and denied that branch of
his cross motion which was to extend the time for discovery,
and upon the plaintiffs' application, in effect, to
confirm a referee's report and for leave to enter a
judgment of foreclosure and sale, confirmed the report and
adopted the referee's computation of the amount owed.
that the judgment offoreclosure and sale is affirmed insofar
as appealed from, with costs.
plaintiffs, Prompt Mortgage Providers of North America, LLC
(hereinafter Prompt), a privately-owned provider of
commercial mortgage loans, and Louis Galpern, a member of
Prompt, commenced this action to foreclose a construction
mortgage in the sum of $350, 000 against property owned by
the defendant Simon Zarour (hereinafter the defendant),
located in Rockland County (hereinafter the New York
property). The defendant executed the construction mortgage,
the note it secured, and other related documents on April 29,
2008, the same day that he executed another set of documents
regarding a loan in the sum of $650, 000, secured by a
mortgage against property he owned in Monmouth County, New
Jersey (hereinafter the New Jersey property).
plaintiffs moved, inter alia, for summary judgment on the
complaint. The defendant opposed the motion, and cross-moved,
among other things, to extend the time for discovery. In an
order dated October 29, 2014, the Supreme Court granted that
branch of the motion and denied that branch of the cross
motion. Thereafter, upon the plaintiffs' application, in
effect, to confirm a referee's report and for leave to
enter a judgment of foreclosure and sale, the court entered a
judgment of foreclosure and sale which, inter alia, confirmed
the report and adopted the referee's computation of the
plaintiffs established their prima facie entitlement to
judgment as a matter of law on the complaint by producing the
construction mortgage, the unpaid note, and proof of the
defendant's default (see Baron Assoc., LLC v Garcia
Group Enters., Inc., 96 A.D.3d 793, 793; Wells Fargo
Bank, N.A. v Cohen, 80 A.D.3d 753, 755; ArgentMtge.
Co., LLC v Mentesana, 79 A.D.3d 1079, 1080).
defendant's submissions in opposition were insufficient
to demonstrate the existence of a triable issue of fact as to
a bona fide defense to the action (see Baron Assoc., LLC
v Garcia Group Enters., Inc., 96 A.D.3d at 793). The
defendant submitted two affirmations in which he alleged that
the plaintiffs tricked him into unwittingly signing the
construction mortgage, the note it secured, and the related
documents. The defendant alleged that, at the closing, which
he attended with an attorney, he was handed three sets of
documents, and neither he nor his attorney was given the
opportunity to review those documents. He alleged that he
signed the documents without reviewing them, at the
insistence of Galpern and Galpern's attorney, because he
regarded Galpern "almost like a father figure, "
and, in his mind, the closing "was more like a family
transaction than a closing." The defendant further
alleged that the note secured by the construction mortgage
was never funded.
party who executes a contract is presumed to know its
contents and to assent to them" (Nerey v Greenpoint
Mtge. Funding, Inc., 144 A.D.3d 646, 648 [internal
quotation marks omitted]; see Golden Stone Trading, Inc.
v Wayne Electro Sys., Inc.,67 A.D.3d 731, 732;
Holcomb v TWR Express, Inc.,11 ...