Does CPLR R. 3212(f) work with CPLR R. 3123

CPLR R. 3212 Motion for summary judgment

CPLR § 3213 Motion for summary judgment in lieu of complaint

Citibank, N.A. v Silverman, 2011 NY Slip Op 04810 (App. Div., 1st 2011)

Assuming, arguendo, that CPLR 3212(f) applies to an action commenced under CPLR 3213, defendant's affidavit failed to show that "facts essential to justify opposition may exist but cannot then be stated" (CPLR 3212[f]; see also Global Mins. & Metals Corp. v Holme, 35 AD3d 93, 103 [2006], lv denied 8 NY3d 804 [2007]).

The motion court properly dismissed defendant's counterclaim alleging a violation of the Bank Holding Company Act (BHCA), (12 USC § 1972[1][C]). When a bank engages in traditional banking practices, it cannot be liable under the BHCA (see BC Recreational Indus. v First Natl. Bank of Boston, 639 F2d 828 [1st Cir 1980]). "The anti-tying provisions [of the BHCA] were not intended to interfere with or impede appropriate traditional banking activities through which banks safeguard the value of their investment" (In re Adelphia Communications Corp., 365 BR 24, 76 [SD NY 2007] citing Nordic Bank PLC v Trend Group Ltd., 619 F Supp 542, 554 [SD NY 1985]).

To demand additional collateral from a debtor who is in default in exchange for extending that debtor's letter of credit is well within traditional banking practices. Indeed, it is commonplace (see F.D.I.C. v Blankinship, 986 F2d 1427 [10th Cir. 1992] ["As a condition to renegotiating debts, banks can properly require additional collateral and impose other terms designed to ensure payment"] [citations omitted]). That the demand for additional collateral concerned the property of other family members does not take it out of the realm of traditional banking practices (see Sanders v First Natl. Bank & Trust Co., 936 F2d 273, 278 [6th Cir. 1987]).

Defendant's counterclaim for breach of the implied covenant of good faith and fair dealing fails because, as we have found, there was no oral forbearance agreement (see Societe Nationale D'Exploitation Industrielle Des Tabacs Et Allumettes v Salomon Bros. Intl., 251 AD2d 137 [1998], lv denied 95 NY2d 762 [2000]). Even if, arguendo, plaintiff orally agreed to forbear while the parties negotiated, we would still reject defendant's claim of bad faith on the part of plaintiff (see Massachusetts Mut. Life Ins. Co. v Gramercy Twins Assoc., 199 AD2d 214, 218 [1993]).Defendant's counterclaims for negligent misrepresentation and breach of fiduciary duty also fail. His conclusory allegations that his relationship with plaintiff was more than that of lender and borrower and that he relied on plaintiff's advice are insufficient to raise the inference that this bank-borrower relationship was special (see e.g. Korea First Bank of N.Y. v Noah Enters., Ltd., 12 AD3d 321, 323 [2004], lv denied 4 NY3d 710 [2005]). Even if, arguendo, there were a special relationship between the parties, defendant failed to raise the inference that he reasonably relied on incorrect information imparted by plaintiff (see J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148 [2007]; Global Mins., 35 AD3d at 99; P. Chimento Co. v Banco Popular de Puerto Rico, 208 AD2d 385, 385 [1994]).

Defendant also fails to make a prima facie case of age discrimination under the ECOA. Even if plaintiff raised defendant's age as an issue during negotiations, it subsequently offered him a term sheet and a loan modification agreement. As for defendant's claim of discrimination on the basis of marital status, essentially based on 12 CFR 202.7(d)(5), his own affidavit and his lawyer's affidavit show that plaintiff did not require his wife to furnish collateral. Rather, plaintiff gave defendant various options, one of which was to give plaintiff a lien against his cooperative apartment, that he co-owned with his wife.

Bond v DeMasco, 2011 NY Slip Op 04615 (App. Div., 2nd 2011)

Contrary to the plaintiffs' contention, the Supreme Court properly denied, as premature, their motion for summary judgment on the issue of liability (see CPLR 3212[f]; Lambert v Sklar, 61 AD3d 939, 940; Aurora Loan Servs., LLC v LaMattina & Assoc., Inc., 59 AD3d 578). The plaintiffs moved for summary judgment on the issue of liability prior to the parties' depositions. The defendants did not have an adequate opportunity to conduct discovery (see Amico v Melville Volunteer Fire Co., Inc., 39 AD3d 784, 785). Moreover, the plaintiff Anne F. Bond and the defendant Rita J. DeMasco submitted, among other things, affidavits containing certain discrepancies pertaining to the circumstances of the subject accident (see Gardner v Cason, Inc., 82 AD3d 930; Cardone v Poidamani, 73 AD3d 828).

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