32ND AVENUE LLC v. (and a third-party action). (2011)

In a consolidated action, inter alia, to recover damages for fraud and to set aside a deed, the defendants Higgins Ave., LLC, Immanuel Piroozian, and Shahriar Homapour appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Grays, J.), entered January 14, 2010, as denied those branches of their motion which were for summary judgment dismissing the complaint insofar as asserted against them, and on their first counterclaim and first cross claim in their amended answer declaring that the defendant Higgins Ave., LLC, is the sole owner of the disputed real property, and the defendant Chinatrust Bank (USA) separately appeals, as limited by its notice of appeal, from so much of the same order as denied that branch of its motion which was for summary judgment dismissing the first, second, and third causes of action insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs payable by the appellants appearing separately and filing separate briefs.

 Initially, the appellants waived the defense of lack of standing (see CPLR 3211[a][3] ) by failing to either make a pre-answer motion to dismiss the complaint on that ground or assert that defense in their respective answers (see CPLR 3211[e];  Countrywide Home Loans, Inc. v. Delphonse, 64 A.D.3d 624, 625, 883 N.Y.S.2d 135;  Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 243, 837 N.Y.S.2d 247).

The Supreme Court properly denied those branches of the motion of the defendants Higgins Ave., LLC, Immanuel Piroozian, and Shahriar Homapour which were for summary judgment dismissing the complaint insofar as asserted against them, and on their first counterclaim and first cross claim in their amended answer declaring that defendant Higgins Ave., LLC, is the sole owner of the disputed real property, as they failed to establish their prima facie entitlement to that relief (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Ford v. Unity Hosp., 32 N.Y.2d 464, 472, 346 N.Y.S.2d 238, 299 N.E.2d 659;  150 Beach 120th St., Inc. v. Washington Brooklyn Ltd. Partnership, 39 A.D.3d 722, 833 N.Y.S.2d 667).

 Further, the Supreme Court properly denied that branch of the motion of the defendant Chinatrust Bank (USA) which was for summary judgment dismissing the first, second, and third causes of action insofar as asserted against it, as it failed to eliminate all triable issues of fact as to whether it breached the subject escrow agreement, and, thus, did not establish its prima facie entitlement to judgment as a matter of law (see Cash v. Titan Fin. Servs., Inc., 58 A.D.3d 785, 789, 873 N.Y.S.2d 642;  Takayama v. Schaefer, 240 A.D.2d 21, 25, 669 N.Y.S.2d 656).