| Newcomb v Sims |
| 2009 NY Slip Op 05305 [63 AD3d 1022] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Nancy Newcomb, Appellant, v Lewis Sims,Respondent. |
—[*1] Rider, Weiner & Frankel, P.C., New Windsor, N.Y. (Michael J. Matsler of counsel), forrespondent.
In an action, inter alia, to impress an equitable mortgage upon real property with priorityover all other mortgages and liens, the plaintiff appeals, as limited by her brief, from so much ofan order of the Supreme Court, Dutchess County (Pagones, J.), dated September 26, 2008, asgranted those branches of the defendant's motion which were, in effect, to dismiss the complaintpursuant to CPLR 3211 (a) (1) and to direct the cancellation of the notice of pendency filedagainst the property.
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of thedefendant's motion which was, in effect, to dismiss the complaint pursuant to CPLR 3211 (a) (1).A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be appropriately grantedwhere documentary evidence utterly refutes the plaintiff's factual allegations, therebyconclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. ofN.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 88 [1994]; ZeldAssoc., Inc. v Marcario, 57 AD3d 660 [2008]; McMorrow v Dime Sav. Bank ofWilliamsburgh, 48 AD3d 646, 647 [2008]). Here, documentary evidence consisting of atranscript of an open-court stipulation, and a settlement agreement executed by the parties,refuted the plaintiff's claim that she was entitled to a first mortgage on the subject property tosecure an obligation owed by her late father's estate. Although the open-court stipulation andsettlement agreement required the defendant executor to provide security for the estate'sobligation to the plaintiff, they also afforded the executor the discretion to determine the form ofsecurity that the plaintiff is to receive. Since the documentary evidence demonstrated that theparties did not unequivocally intend that the subject property serve as security for the estate'sobligation to the plaintiff, with priority over all other mortgages and liens, the plaintiff was notentitled to the imposition of an equitable mortgage holding such priority (see Tornatore vBruno, 12 AD3d 1115, 1117 [2004]; Mailloux v Spuck, 87 AD2d 736, 737 [1982]).
The plaintiff's remaining contention is without merit. Mastro, J.P., Fisher, Eng and Hall, JJ.,concur.