Prompt Mortgage Providers of North America, LLC, et al., respondents,
Simon Zarour, appellant, et al., defendants. Index No. 33483/12
A. Kolber, Suffern, NY, for appellant.
H. Singer & Associates, LLP, New York, NY (Christopher S.
McCann of counsel), for respondents.
C. DILLON, J.P., SHERI S. ROMAN, SYLVIA O. HINDS-RADIX, BETSY
DECISION & ORDER
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:
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 of foreclosure 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; Argent Mtge.
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 A.D.3d 513, 514;
Moon Choung v Allstate Ins. Co., 283 A.D.2d 468,
468). Thus, "[a] party who signs a document without any
valid excuse for having failed to read it is conclusively
bound by its terms" (Shklovskiy v Khan, 273
A.D.2d 371, 372), "unless there is a showing of fraud,
duress, or some other wrongful act on the part of any party
to the contract" (Renee Knitwear Corp. v ADT Sec.
Sys., Northeast, 277 A.D.2d 215, 216; see Barclays
Bank of N.Y. v Sokol, 128 A.D.2d 492, 493). "The
elements of a cause of action sounding in fraud are a
material misrepresentation of an existing fact, made with
knowledge of the falsity, an intent to induce reliance
thereon, justifiable reliance upon the misrepresentation, and
damages" (JP Morgan Chase Bank, N.A. v Hall,
122 A.D.3d 576, 579 [internal quotation marks omitted];
see Eurycleia Partners, LP v Seward & Kissel,
LLP, 12 N.Y.3d 553, 559; House of Spices [India],
Inc. v SMJ Servs., Inc., 103 A.D.3d 848, 850;
Introna v Huntington Learning Ctrs., Inc., 78 A.D.3d
896, 898). Here, the defendant failed to establish the
element of justifiable reliance on alleged misrepresentations
of Galpern and Galpern's attorney, since the documents
were provided to him, and he and his attorney could have read
them. Nor has the defendant established any other valid
excuse for his purported failure to read the construction
mortgage and related documents before signing them.
defendant's submissions in opposition to the motion for
summary judgment also failed to raise a triable issue of fact
as to whether the note secured by the construction mortgage
was funded. The defendant did not submit any evidence in
support of his averment that the $650, 000 that he admittedly
received was not intended to ...