| Matter of Reitman v Wachovia Natl. Bank, N.A. |
| 2008 NY Slip Op 02601 [49 AD3d 759] |
| March 18, 2008 |
| Appellate Division, Second Department |
| In the Matter of Janie Pogan Reitman, Also Known as JanieReitman, et al., Appellants, v Wachovia National Bank, N.A.,Respondent. |
—[*1] McCabe, Weisberg & Conway, P.C., New York, N.Y. (Monica G. Christie and DoronZanani of counsel), for respondent.
In a proceeding, inter alia, pursuant to RPAPL 1921 to direct the respondent to issue asatisfaction of a credit line mortgage and to permanently enjoin the respondent from sellingcertain property subject to the mortgage pursuant to a foreclosure sale, the petitioners appeal, aslimited by their brief, from stated portions of an order and judgment (one paper) of the SupremeCourt, Westchester County (Lefkowitz, J.), dated March 21, 2007, which, upon an order of thesame court entered February 5, 2007, inter alia, denying that branch of their motion which wasfor summary judgment on the petition and granting that branch of the respondent's cross motionwhich was for summary judgment on its first and second counterclaims, determined that thecredit line mortgage was a superior lien and that the respondent was entitled to foreclose it. Thenotice of appeal from the order is deemed to be a notice of appeal from the order and judgment(see CPLR 5512 [a]).
Ordered that the order and judgment is affirmed insofar as appealed from, with costs.
Contrary to the petitioners' contentions, the Supreme Court properly denied that branch oftheir motion which was for summary judgment on the petition, inter alia, to direct the respondentto issue a satisfaction of the subject credit line mortgage pursuant to RPAPL 1921 (1) andgranted that branch of the respondent's cross motion which was for summary judgment on its firstand second counterclaims. RPAPL 1921 (1), obligates a mortgagee to issue a satisfaction of acredit line mortgage, "on written request" therefor, "[a]fter payment of authorized principal,interest and any other amounts due thereunder or otherwise owed by law has actually beenmade."[*2]
In response to the respondent mortgagee's prima facieshowing of entitlement to summary judgment demonstrating that the petitioners did not complywith the requirement under RPAPL 1921 (1) that a written request be made for the satisfaction,the petitioners failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp.,68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]).
In opposition to the respondent's cross motion and in support of their motion for summaryjudgment, the petitioners failed to proffer any evidence that the respondent received a "writtenrequest" from its borrower, the petitioner Janie Pogan Reitman, also known as Janie Reitman, orany of the other petitioners, advising it to issue a satisfaction of the credit line mortgage(see RPAPL 1921 [1]). Contrary to the petitioners' contention, the cover letter thataccompanied a check dated March 17, 2004, representing the amount then needed to reduce theaccount balance to zero, did not constitute a "written request" to discharge the credit linemortgage pursuant to RPAPL 1921. "[T]he mere reduction to zero of the outstanding balance of acredit line mortgage during the term of the mortgage does not constitute payment of the mortgagefor the purposes of determining whether the mortgagee must execute a satisfaction upon request"(Barclay's Bank of N.Y. v Market St. Mtge. Corp., 187 AD2d 141, 144 [1993]).
In addition, there was nothing in the correspondence dated March 17, 2004, indicating thatthe enclosed check was "to satisfy the [subject credit line] mortgage" (id.), or asking therespondent to "send the satisfaction of mortgage[ ]" (Merrill Lynch Equity Mgt. v Kleinman,246 AD2d 884, 885 [1998]), or any other indication that the borrower intended to close thecredit line after the March 17th payment was made. Thus, under the circumstances of this case,the respondent was not required to issue a satisfaction pursuant to RPAPL 1921 (1) (cf.Barclay's Bank of N.Y. v Market St. Mtge. Corp., 187 AD2d 141, 144 [1993]; MerrillLynch Equity Mgt. v Kleinman, 246 AD2d 884, 885 [1998]).
Accordingly, the Supreme Court, upon granting the respondent summary judgment on itsfirst and second counterclaims, properly determined that the credit line mortgage, which thepetitioner again made use of and defaulted on, was a superior lien and that the respondent wasentitled to foreclose on it. Mastro, J.P., Fisher, Dillon and McCarthy, JJ., concur.