Weiss v. Phillips

NEW YORK COUNTY
Real Property

New York Law Journal

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Justice Paul Wooten

Weiss began a foreclosure action against defendants for an unsatisfied mortgage and note, and a Consolidated Extension Mortgage Agreement (CEMA) note, on the subject property. Weiss sought summary judgment dismissing Phillips' defenses. Phillips transferred the property to McCarthy claiming he had an oral agreement that McCarthy would eventually transfer it back to Phillips. McCarthy was allegedly mislead to transfer the premises to Welch-Ford. Phillips alleged he made payments on the original mortgage and note and requested that McCarthy transfer the property back to him, but was refused. All parties claimed the McCarthy v. Smith suit was settled and the property transferred back to Phillips, but no proof of the settlement was filed with the court. Weiss argued he was entitled to summary judgment based on the CEMA as it was clear and unambiguous, and Phillips waived his right to assert defenses. Phillips claimed the CEMA was unenforceable as it was based on the original mortgage which was void. The court denied Weiss' motion stating he failed to submit legally admissible evidence to meet his burden of showing no material issues of fact. It noted Weiss and Phillips attached "a materially different meaning" to the CEMA, which was ambiguous.

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