GRO WIT CAPITAL LTD v. OBIGOR LLC (2006)

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (F. Rivera, J.), dated December 16, 2005, which denied its motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, and the motion is granted.

 The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting a mortgage, a note, a stipulation ratifying the mortgage as modified thereby (hereinafter the stipulation), and proof of nonpayment of the note (see Marculescu v. Ovanez, 27 A.D.3d 701, 815 N.Y.S.2d 598;  Marine Midland Bank v. Fillippo, 276 A.D.2d 601, 714 N.Y.S.2d 906;  LBV Props. v. Greenport Dev. Co., 188 A.D.2d 588, 589, 591 N.Y.S.2d 70).   In opposition, the defendant David Hosten failed to raise a triable issue of fact.

 In a prior action to foreclose the same mortgage, the parties thereto, including the plaintiff and David Hosten, entered into the stipulation pursuant to which they agreed, inter alia, to modify the payment terms of the mortgage and to discontinue that action.   Hosten's contention that the stipulation was unenforceable and should be set aside is without merit.  “In order to vacate [a] stipulation of settlement on the ground of mutual mistake, [a party must] demonstrate that the mistake existed at the time the stipulation was entered into and that it was so substantial that the stipulation failed to represent a true meeting of the parties' minds” (Mahon v. New York City Health & Hosps. Corp., 303 A.D.2d 725, 756 N.Y.S.2d 875;  see Maury v. Maury, 7 A.D.3d 585, 586, 776 N.Y.S.2d 489).   Based upon Hosten's own assertions, the evidence that he proffered purportedly showing that the note had already been paid and the mortgage satisfied at the time the parties entered into the stipulation not only was available to him at that time but he used it as evidence of a meritorious defense to open his default in the original foreclosure action (cf. Star v. Star, 260 A.D.2d 363, 365, 687 N.Y.S.2d 698).   Thus, his contention that he entered into the stipulation upon a mistake of fact is belied by his own assertions (see Star v. Star, supra at 365, 687 N.Y.S.2d 698).

 Also without merit is Hosten's contention that the assurances to him by the plaintiff and its counsel regarding the status of the mortgage and note at the time of the stipulation were fraudulent or that he justifiably relied upon these representations of his adversary to his detriment (see LoGalbo v. Plishkin, Rubano & Baum, 197 A.D.2d 675, 676, 602 N.Y.S.2d 906).

Hosten's remaining contentions are without merit.

Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the issue of liability.