Mimosa Equities Corp. v. ACJ Associates LLC , 22 N.Y.S.3d 841 ( 2016 )

Mimosa Equities Corp. v ACJ Assoc. LLC (2016 NY Slip Op 00261)

Mimosa Equities Corp. v ACJ Assoc. LLC

2016 NY Slip Op 00261

Decided on January 14, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 14, 2016
Tom, J.P., Sweeny, Richter, Manzanet-Daniels, JJ.

16649 150017/14

[*1] Mimosa Equities Corp., Plaintiff-Respondent,

v

ACJ Associates LLC, et al., Defendants-Appellants.

John Ramsen, Farmingdale, for appellants.

Hankin & Mazel, PLLC, New York (Mark L. Hankin of counsel), for respondent.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered December 9, 2014, which denied defendants ACJ Associates LLC and Jadam Equities LLC's motion to dismiss the complaint pursuant to CPLR 3211(a)(1), unanimously affirmed, without costs.

The documentary evidence upon which defendants moved to dismiss the complaint is a letter agreement executed by plaintiff and defendant ACJ Associates LLC confirming plaintiff's satisfaction of a wraparound mortgage and note held by ACJ, in which the signatories released each other from all claims "with respect to only or arising from only the Loan and/or Wraparound Mortgage." Defendant Jadam Equities LLC, ACJ's escrow agent, is holding monies deposited by plaintiff for the payment of real estate taxes by ACJ, pursuant to a rider to the wraparound mortgage. Although the rider is incorporated by reference in the mortgage, the limiting language of the release makes it clear that the parties did not intend the release to cover escrowed monies for real estate taxes (see Morales v Solomon Mgt. Co., LLC, 38 AD3d 381 [1st Dept 2007]). Thus, the documentary evidence does not conclusively establish a defense to plaintiff's claim that it is entitled to a refund of the escrowed monies (see Leon v Martinez, 84 NY2d 83, 88 [1994]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 14, 2016

CLERK