The opinion
Wilmington Sav. Fund Socy., FSB v MSPK Constr.
LLC
2025 NY Slip Op 32587(U)
July 22, 2025
Supreme Court, Dutchess County
Docket Number: Index No. 2024-52530
Judge: Maria G. Rosa
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
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This opinion is uncorrected and not selected for official
publication.
INDEX NO. 2024-52530
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 07/23/2025
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHES S
Present:
Hon. Maria G. Rosa, Justice
WILMfNG TON SA VIN GS FUND SOCIETY, FSB, NOT
fN ITS fNDIVIDU AL CAPACIT Y, BUT SOLELY AS
OWNER TRUSTEE OF MFA 2022-RTL I TRUST,
Plaintiff / Countercla im-Defend ant, DECIS IO A D ORDER
-against- Index o.: 2024-5253 0
MSPK CONSTRU CTION LLC; MAURICE P. PEARCE; Motion Sequence: 4
and ELIZABET H A. CARELA;
Defendants I Countercla im-Plaintiffs.
The fo llowing papers were read and considered on Plaintiff / Countercla im-Defend ant ' s
(" Plaintiff') motion to dismiss the counterclai ms asserted by Defendants / Countercla im-P laintiffs
("Defendan ts"):
Document: NYSCEF Doc. No(s).:
NOTICE OF MOTION ..................... ........................... ..... ....... ..... ........ ..................... 71
ATTORNE Y AFFIRMA TION IN SUPPORT .......................................................... 72
PLAfNTIF F AFFIDAV IT IN SU PPORT (EXHIBIT A) ..... .. ............. ......... ............. 73
EXHIBITS B-C ......................................................................................................... 74- 75
MEMORA NDUM OF LAW ..................................................................................... 76
OPPOSITION ATTORNE Y AFFIRMA TION ......................................................... 82
OPPOSITI O MEMO RA OUM OF LAW ............................................................. 83
REPLY ATTORNE Y AFFIRMA TION .................. .................. ..... ........... ................ 84
PLEADfN GS .. ....................................................................... ..................... ............... 1- 7, 20 , 21
This was originally an acti on to fo reclose a commercia l mortgage given by Defendant
MSPK Constructio n LLC ("Defendan t MSPK") to Plaintiff's predecesso r-in-interes t, Lima One
Capital, LLC, regarding real property located at 27 Spruce Street in the Ci ty of Poughkeep sie, New
York. The mortgage was given on or about December 2 1, 202 1 in exchange for a loan in the
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INDEX NO. 2024-52530
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 07/23/2025
amount of $ 198,090.00 . Defendants Pearce and Carela, as members and managers of Defendant
MSPK, executed commercial guaranties for the loan. As set forth in the Commercial Promissory
Note ("Note") evidencing the loan, the loan was repayable in monthly installments of interest only
in the amount of $1 ,568.21 commencin g February 10, 2022 and concluding with a payment due
January I 0, 2023. The Note further provided that the maturity date of the loan was February I,
2023, at which time "the entire principal amount of this Note, together with accrued interest and
with all other sums due hereunder, shall be due and payable in full. " Pursuant to a "Loan Extension
Agreement " executed Apri l 27, 2023 and effective as of March 29, 2023, the maturity date of the
loan was extended to May I, 2023. The mortgage and Note were assigned to Plaintiff on or about
May l, 2024.
Plaintiff commence d this action on June 19, 2024, asserting a single cause of action for
forec losure of the mortgage. On September 12, 2024, Defendants filed a verified answer asserting
seventeen affirmative defenses and four counterclaims: breach of contract, breach of the implied
covenant of good faith and fair dealing, unjust enrichmen t, and deceptive and unfair trade practices
in violation of General Business Law § 349. Plaintiff filed a reply to the counterclai ms on
September 19, 2024.
On September 30, 2024, Plaintiff moved to discontinue this action on the basis that the
loan had been repaid in full. In opposition, Defendants cross-move d for summary judgment on
their counterclai ms. By Decision and Order dated January 30, 2025 (" l /30/25 Decision") , the
Court granted Plaintiffs motion and denied Defendants ' motion. Plaintiff now affirmative ly
moves to dismiss Defendants ' four counterclai ms, either for fail ure to state a cause of action
(CPLR 32 11 [a][7]), or on summary judgment (CPLR 32 12[b]).
First Counterclaim: Breach of Conlracl
In the I /30/25 Decision, the Court held that Defendants failed to meet their prima facie
burden to demonstrat e that Plaintiff breached the parties' contract. Specificall y, Defendants fai led
to a llege in their verified answer that they performed all of their obligations under the contract.
In support of its motion, Plaintiff submits an affidavit from its loan servicer attesting to
Defendants ' default under the contract " by failing to make the complete payment due on the
May 1, 2023 maturity date." In opposition, Defendants submit an affirmation of counsel and
memorand um of law, and rely on their earlier-filed verified answer. Defendants ' counsel does not
claim to have personal knowledge of the parties' transaction , and his affirmation is not probative
on the issue of whether Defendants performed all of their contractual obligations (Alvarez, 68
NY2d at 320). Defendants also do not submit evidence to support their argument that additional
discovery is necessary to determine whether they were, in fact, in default after May l , 2023
(Hanover Ins. Co. v Prakin, 81 AD3d 778, 780 [2d Dept 20 11 ]). As Plaintiff has submitted
admissible evidence demonstrat ing that Defendants did not fulfill all of their contractual
obligations, and Defendants have not submitted admissible evidence in rebuttal, Plaintiff is entitled
to dismissal of the first counterclai m for breach of contract (CPLR 32 1 I [a] [7], 3212[b])
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INDEX NO. 2024-52530
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 07/23/2025
Second Counterclaim: Breach o[the Implied Covenanl o(Good Faith and Fair Dealing
"For a complai nt to sta te a cause of action alleging breach of an implied covenant of good
nt sought
faith and fair dealing, the plaintiff must allege facts which tend to show that the defenda
to prevent perform ance of the contract or to withho ld its benefits from the plaintif f'
(Frydman v
Endurance American Insurance Co., 235 AD3d 848, 849 [2d Dept 2025)).
ln their answer, Defenda nts assert that Plaintiff breached the implied covenan t of good
ng property ,
faith and fair dealing by fai ling to provide payoff quotes to enable a sale of the underlyi
costs, and in filing th is
by using the delays in the sale to charge addition al fees, interest, and
the
foreclos ure action. In effect, Defenda nts assert that Plaintif f prevented them from repaying
ds of dollars more than it was
loan earlier, resulting in Plaintiff being repaid " tens of thousan
entitled. "
of
All of this alleged miscond uct by Plaintif f occurred after the May I, 2023 maturity date
the loan
the loan when full repayme nt was due, and it is undispu ted that Defenda nts did not repay
(e.g., Fifty
by that date. As the failure to make a paymen t when due constitu tes a material breach
Plaintiff 's
States Management Corp. v. Pioneer Auto Parks, Inc., 46 N Y2d 573, 575 [1979]),
claim for breach of the
alleged miscond uct occurring after May I, 2023 cannot be the basis for a
implied covenant of good faith and fair dealing, or any other contractual claim (EXRP
14 Holding s
nts' second counterc laim
LLC v LS-1 4 Ave LLC, 228 AD3d 498, 499 [1st Dept 2024]). Defenda
therefore fails to state a cause of action and must be dismissed (CPLR 321 1[a][7]).
Third Counterclaim: Uniust Enrichment
"To recover under a theory o f unjust enrichm ent, a litigant must show that ( 1) the other
conscien ce
party was enriched , (2) at that party's expense , and (3) that it is against equity and good
Enforce ment
to permit the other party to retain what is sought to be recovered" (Whitfie ld v law
"a cause
Employees Benevolent Association, 237 AD 3d 1139, 11 41 [2d Dept 2025)). However,
not viable where there is
of action predicated on a theory of implied contract or quasi-co ntract is
Repairs,
an express agreeme nt that governs the subject matter underlying the action" (Gym Door
16] [interna l quotatio n
Inc. v Astoria Gen. Con tr. Corp., 144 AD3d 1093, 1097 [2d Dept 20
omitted]).
loan
ln support of its motion, Plaintiff 's represen tative states that pursuant to the Note, the
would be
would accrue interest at 23% per annum followin g any defau lt, late charges of 10%
reasonab le
applied to missed paymen ts, and Plainti ff could also recover "any costs, expense s, and
tative
attorney s' fees incurred " to enforce its rights under the loan docume nts. T he represen
15, 2025, includin g
attaches a "Loan Master Report" detailing the loan history through January
oppositi on,
the accrual of default interest, late charges, legal costs, and other charges. In
were not permitte d pursuan t to
Defenda nts do not specify in their answer which of these charges
e value.
the parties' contract; and as discusse d above, counsel 's affirmation is of no probativ
sums added to the loan balance after the
Plainti ff has therefore demons trated that the additional
a triable issue
May 1, 2023 default were contract ually permissible, and Defendants failed to raise
of fact. The third counterc laim must therefore be dismissed (CPLR 32 12[b]).
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INDEX NO. 2024-52530
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 07/23/2025
Fourth Counterclaim: Deceptive and Unfair Trade Practices in Violation ofGBL § 349
"To assert a viable claim under General Business Law ["GBL"] § 349(a), a party must
plead that ( I) the challenged conduct was consumer-oriented, (2) the conduct or statement was
materially misleading, and (3) he or she sustained damages" (Disa Realty, Inc. v Rao, 137 AD3d
740, 742 [2d Dept 2016]). " [P]arties claiming the benefit of [GBL § 349] must, at the threshold,
charge conduct that is consumer oriented" (Singh v City of New York, 40 NY3d 138, 148 [2023],
rearg denied, 40 NY3d 975 [2023]). "This element is satisfied only when the a llegedly deceptive
conduct has a broad impact on consumers at large" (Id. [internal quotation marks omitted]).
In their answer, Defendants allege several allegedly deceptive and unfair actions directed
toward them by Plaintiff. Defendants do not allege any mi sconduct by Plaintiff directed toward
the consumers at large. The fourth cause of action therefore fails to state a claim and must be
dismissed (CPLR 3211 [a] [7]).
Based on the foregoing it is hereby
ORDERED that Plaintiffs motion to dismiss Defendants' counterclaims is granted; and it
is further
ORDERED that this action is now fully dismissed.
The foregoing constitutes the decision and order of the Court.
Dated: July ~ d- ,
2025
Poughkeepsie, New York
ENTER:
MARJA G. ROSA, J.S.C.
Pursuant to CPLR §5513, an appeal as of right must be taken within thirty days after service by a
party upon the appellant of a copy of the judgment or order appealed from and written notice of
its entry, except that when the appellant has served a copy of the judgment or order and written
notice of its entry, the appeal must be taken within thirty days thereof.
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