| Booth v Ameriquest Mtge. Co. |
| 2009 NY Slip Op 04846 [63 AD3d 769] |
| June 9, 2009 |
| Appellate Division, Second Department |
| Richard P. Booth, Appellant-Respondent, v AmeriquestMortgage Company, Respondent-Appellant. |
—[*1] Weber Law Group LLP, Melville, N.Y. (Michael C. MulÉ of counsel), forrespondent-appellant.
In an action, inter alia, to cancel and discharge a mortgage, the plaintiff appeals from somuch of an order of the Supreme Court, Suffolk County (Weber, J.), dated November 8, 2007, asdenied his cross motion for summary judgment, and the defendant cross-appeals from so muchof the same order as denied its motion for summary judgment.
Ordered that the order is affirmed, without costs or disbursements.
"[W]here a purchaser of land has knowledge of any facts sufficient to put him upon inquiryas to the existence of some right, or some title, in conflict with that he [or she] is about toacquire, he [or she] is presumed, either to have made the inquiry and ascertained the extent ofsuch prior right, or to have been guilty of a degree of negligence equally fatal to his [or her]claim to be considered a bona fide purchaser" (Anderson v Blood, 152 NY 285,293 [1897]).
Similarly, if a purchaser or encumbrancer knows facts that would "excite the suspicion of anordinarily prudent person" and fails to investigate, the purchaser or encumbrancer will bechargeable with that knowledge which a reasonable inquiry, as suggested by the facts, wouldhave revealed (see Miner v Edwards, 221 AD2d 934 [1995], quoting Anderson vBlood, 152 NY at 293; Fischer vSadov Realty Corp., 34 AD3d 630, 631 [2006]). A mortgagee who fails to make suchan inquiry is not a bona fide encumbrancer for value (see Vitale v Pinto, 118 AD2d 774[1986]). Here, since the defendant possessed facts of such nature that would have "excite[d] thesuspicion of an ordinarily prudent person" (Miner v Edwards, 221 AD2d at 934), it wasnot a bona fide encumbrancer for value, and was not entitled to summary judgment dismissingthe complaint.
The Supreme Court also correctly determined that triable issues of fact exist, precludingsummary judgment in favor of the plaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]; see e.g. Vitale v Pinto, 118 AD2d 774 [1986]).
The parties' remaining contentions are without merit. Spolzino, J.P., Covello, Angiolillo andDickerson, JJ., concur.