NYCTL 1996-1 Trust v. Railroad Maintenance Corp.

266 A.D.2d 39, 698 N.Y.S.2d 27, 1999 N.Y. App. Div. LEXIS 11385

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1999
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Bertram Katz, J.), entered June 12, 1998, which, inter alia, granted plaintiffs’ motion for summary judgment as against defendant Railroad Maintenance Corp (RMC), striking RMC’s answer and referring the matter to a Referee to compute and ascertain the amount due plaintiffs, unanimously affirmed, with costs.

The tax lien certificate in favor of “The Bank of New York as Collateral Agent and Custodian” constituted “presumptive evidence” of the transfer of the lien to Bank of New York (BNY) and the lien’s beneficial owner(s) (Administrative Code of City of NY § 11-336), and was sufficient to establish a prima facie right on the part of plaintiffs to bring this action to foreclose the lien. Defendant RMC’s contention that it was unfairly surprised by the circumstance that plaintiffs did not include in their initial moving papers the trust agreement and indenture, pursuant to which plaintiff NYCTL purchased and became beneficial owner of the subject tax lien and plaintiff BNY came to hold the lien as collateral for payment of the bond issued by NYCTL to finance purchase of the tax liens from the City, is without merit. The trust agreement and indenture were alleged in the complaint without objection, and again in support of the motion. Accordingly, RMC could not have been surprised by the inclusion of the documents themselves in plaintiffs’ reply papers, particularly since those reply papers answered RMC’s own belated challenge to plaintiffs’ standing, a challenge never pleaded by RMC in its answer, but instead raised for the first time by RMC in its opposition to the motion for summary judgment.

We have reviewed defendant’s remaining argument and find it unavailing. Concur — Nardelli, J. P., Tom, Mazzarelli, Wallach and Buckley, JJ.