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Gerrity Co. v. Riscica
Citations: 214 A.D.2d 866; 625 N.Y.S.2d 360; 1995 N.Y. App. Div. LEXIS 4390
Court: Appellate Division of the Supreme Court of the State of New York; April 20, 1995; New York; State Appellate Court
An appeal was filed by Anthony M. Riscica from a Supreme Court order that partially granted a motion for summary judgment in favor of the plaintiff, who sought foreclosure on a property due to a defaulted mortgage. The mortgage, executed by third-party defendants Joseph V. Immediate and Maria C. Immediate for $35,000, secured their debt from purchasing building materials. In June 1988, the Immediatos sold the property to Riscica, receiving $20,000, which was subsequently tendered to the plaintiff as partial payment on the unsecured debt owed by the Immediatos. When no further payments were made, the plaintiff initiated foreclosure proceedings against Riscica. Riscica countered by alleging that the Immediatos fraudulently promised to apply the $20,000 to the mortgage. The Supreme Court granted summary judgment to the plaintiff, finding no triable issues of fact. On appeal, the court affirmed that Riscica took title subject to the mortgage, noting that the mortgage was in default. Riscica's arguments against the foreclosure, citing Immediato’s bankruptcy and the plaintiff's failure to declare a default, were dismissed; no evidence of bankruptcy was presented, and the plaintiff was not required to declare a default since the debt was already overdue. Riscica also claimed that Immediato’s inconsistent statements about directing the $20,000 payment created factual disputes. However, the court referenced established precedent that allowed creditors to apply payments as they see fit unless directed otherwise. Immediato’s own statements confirmed he intended for the payment to satisfy the mortgage debt, supporting the plaintiff's position. The court found that the evidence provided by the plaintiff established entitlement to judgment, leading to the dismissal of Riscica’s appeal. Immediato's affidavit reveals he instructed the plaintiff to apply a $20,000 payment to his account but did not specify how this should be done, claiming earlier contradictory statements were due to confusion. The Supreme Court's decision was erroneous as the inconsistencies in Immediato's statements raised factual issues regarding the allocation and significance of the $20,000 payment, making summary judgment for the plaintiff inappropriate. The order is modified to reverse the granting of summary judgment in favor of the plaintiff against defendant Anthony M. Riscica, denying the motion to that extent, while affirming the modified order. A previously encumbered parcel of land, which was released by the plaintiff, is not relevant to this appeal. Additionally, Citibank, which funded Riscica's property purchase and holds a mortgage on it, is also an appealing party, and references to Riscica will include Citibank as applicable.