NYCTL 1999-1 Trust v. 573 Jackson Avenue Realty Corp.

39 A.D.3d 267, 833 N.Y.S.2d 74

Opinion

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered January 11, 2006, which, in this action to foreclose a tax lien, inter alia, granted plaintiffs’ motion for summary judgment as against defendant-appellant, unanimously affirmed, without costs.

The motion court’s prior order dismissing the complaint as against defendant-appellant solely for lack of proper service did not purport to determine the merits of, and, accordingly, was not preclusive of plaintiff’s now reasserted claims against defendant-appellant (see Espinoza v Concordia Intl. Forwarding Corp., 32 AD3d 326, 328 [2006]; Mudry v Giannattasio, 8 AD3d 455, 456 [2004]). Respecting the merits, defendant-appellant is not excused from payment of the statutorily mandated compound interest because plaintiffs took partial payment of the total amount owed in the form of the original tax arrears. It is clear that defendant-appellant possesses no viable defense to plaintiffs’ claims, and it would not be appropriate to permit it to embark upon discovery based on nothing more than hope and speculation that the exercise would be productive of evidence raising a triable issue of fact (see Belle-Oudry v Still, 1 AD3d 391, 392 [2003]). Concur—Andrias, J.P., Marlow, Sullivan, Gonzalez and Kavanagh, JJ.