21 55 45TH ROAD LLC v. ALTAMIRANO (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Wilson Fernando Altamirano appeals from (1) an order of the Supreme Court, Queens County (Lance Evans, J.), entered April 5, 2021, and (2) an order of the same court dated April 21, 2021.  The order entered April 5, 2021, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Wilson Fernando Altamirano and for an order of reference and denied that defendant's cross-motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him.  The order dated April 21, 2021, insofar as appealed from, granted the same relief to the plaintiff, in effect, denied the same relief to the defendant Wilson Fernando Altamirano, and referred the matter to a referee to compute the amount due to the plaintiff.

ORDERED that the appeal from the order entered April 5, 2021, is dismissed. as the portion of the order appealed from was superseded by the order dated April 21, 2021;  and it is further,

ORDERED that the order dated April 21, 2021, is affirmed insofar as appealed from;  and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

In August 2010, Irene Cargonja commenced this action against, among others, the defendant Wilson Fernando Altamirano (hereinafter the defendant) to foreclose a mortgage encumbering certain commercial property located in Long Island City. In September 2010, the defendant and Cargonja entered into a forbearance agreement that included a 90–day moratorium period to pay arrears and real estate taxes.  Pursuant to the agreement, the defendant executed a deed in lieu of foreclosure (hereinafter the deed) to be held in escrow during the moratorium period, and if the defendant failed to pay the arrears and real estate taxes as required, the deed would be delivered to Cargonja at the close of the moratorium period.

In March 2015, Cargonja notified the defendant that he was in default, with an excess of $500,000 past due, and that unless the defendant remitted the requisite payment, the deed would be recorded.  The deed was recorded on July 21, 2015.

In 2017, in a separate action commenced by the defendant against Cargonja, the defendant was granted summary judgment declaring that the deed had the effect of a mortgage only, and did not convey any interest in fee simple absolute to Cargonja.  The court in that action stated that Cargonja must “proceed by way of mortgage, which she has already done.”

In this action, in an order dated April 30, 2019, the Supreme Court granted the unopposed motion of 21–55 45th Road, LLC, as successor in interest to Cargonja, to amend the complaint and to be substituted as the plaintiff in this action.  In August 2019, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.  The defendant opposed the motion and cross-moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him.  In an order entered April 5, 2021, the Supreme Court, among other things, granted those branches of the plaintiff's motion and denied the defendant's cross-motion.  In an order dated April 21, 2021, the court, inter alia, granted the same relief to the plaintiff, in effect, denied the same relief to the defendant, and referred the matter to a referee to compute the amount due to the plaintiff.  The defendant appeals from both orders.

Where, as here, the plaintiff sustains its initial burden of demonstrating its entitlement to judgment as a matter of law on its foreclosure cause of action by submitting the note, the mortgage agreement, and proof of the defendant's default in payment, the defendant must demonstrate by admissible evidence the existence of a triable issue of fact as to a bona fide defense (see Excel Capital Group Corp. v 225 Ross St. Realty, Inc., 165 AD3d 1233, 1235).  Contrary to the defendant's contention, “a lender may accept a partial payment without revoking its acceleration of a loan” (Wells Fargo Bank, N.A. v. Maddaloni, 186 AD3d 1587, 1589).

Here, the defendant failed to submit sufficient evidence to raise a triable issue of fact as to whether he cured his default (see Inland Mtge. Capital Corp. v Realty Equities NM, LLC, 71 AD3d 1089, 1090).  The existence of a dispute as to the total amount of indebtedness does not preclude summary judgment on the foreclosure cause of action, but would be properly raised before the referee in computing the amount due to the plaintiff (see PennyMac Corp. v. Bongiovanni, 212 AD3d 837, 840;  Excel Capital Group Corp. v. 225 Ross St. Realty, Inc., 165 AD3d at 1235).

Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference and denied the defendant's cross-motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him.

In light of the foregoing, the parties' remaining contentions either need not be reached or are without merit.

DUFFY, J.P., CHRISTOPHER, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.