| Merritt v Merritt |
| 2008 NY Slip Op 00240 [47 AD3d 689] |
| January 15, 2008 |
| Appellate Division, Second Department |
| Lois Merritt, Appellant, v Travis Merritt et al., Defendants,and Berkshire Financial Group, Inc., et al., Respondents. |
—[*1] Banks Shapiro Gettinger & Waldinger, LLP, Mount Kisco, N.Y. (Mona D. Shapiro ofcounsel), for respondent Berkshire Financial Group, Inc. Feldman Weinstein & Smith, LLP, New York, N.Y. (Eric S. Weinstein and David J. Galalisof counsel), for respondent IndyMac Bank, F.S.B.
In an action, inter alia, to recover damages for unjust enrichment and for a judgmentdeclaring that certain mortgages are null and void, the plaintiff appeals from an order of theSupreme Court, Westchester County (Colabella, J.), entered October 5, 2006, which granted theseparate motions of the defendants Berkshire Financial Group, Inc., and IndyMac Bank, F.S.B.,pursuant to CPLR 3211 (a) (7) to dismiss the amended complaint insofar as asserted against eachof them.
Ordered that the order is affirmed, without costs or disbursements.
The Supreme Court correctly granted the separate motions of Berkshire Financial Group, Inc.(hereinafter Berkshire), and IndyMac Bank, F.S.B. (hereinafter IndyMac), pursuant to CPLR3211 (a) (7) to dismiss the amended complaint insofar as asserted against each of them. The firstcause of action for declaratory relief insofar as asserted against Berkshire and IndyMac failed toallege any facts that these defendants were on notice of the fraud allegedly committed by theplaintiff's son Travis Merritt so as to deprive Berkshire and IndyMac of the status of good faithencumbrancers for value (see Real Property Law § 266; Simonds vSimonds, 45 NY2d 233, 242 [1978]; Istel [*2]v Istel,258 AD2d 506, 507 [1999]; Emerson Hills Realty v Mirabella, 220 AD2d 717 [1995];Restatement of Restitution § 172, Comment c, Illustration 5; cf. Diamond vWasserman, 8 AD2d 623, 624 [1959]). The amended complaint actually alleges that thesedefendants granted their mortgage loans based on their belief that Travis Merritt was the properowner of the premises. In fact, Travis Merritt was the true owner at the times Berkshire andIndyMac made their loans and took mortgages from Travis. Moreover, as acknowledged by theplaintiff, the IndyMac lien had already been discharged by the time the action was commenced.
The amended complaint failed to adequately plead a cause of action to recover damages forunjust enrichment insofar as asserted against Berkshire and IndyMac, as it did not allege thateither of them was unjustly enriched. Prudenti, P.J., Crane, Fisher and McCarthy, JJ., concur.