| Fremont Inv. & Loan v Delsol |
| 2009 NY Slip Op 06403 [65 AD3d 1013] |
| September 8, 2009 |
| Appellate Division, Second Department |
| Fremont Investment & Loan, Respondent, v Selina Delsolet al., Defendants, and Shirley Thompson, Appellant. |
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Knuckles, Komosinski, Scutieri & Elliott, LLP, Tarrytown, N.Y. (Kenneth J. Flickinger ofcounsel), for respondent.
In an action, inter alia, to impose an equitable mortgage upon certain real property owned bythe defendant Shirley Thompson, that defendant appeals from an order of the Supreme Court,Westchester County (Nicolai, J.), entered January 11, 2008, which granted that branch of theplaintiff's motion which was for summary judgment on the first cause of action to the extent ofimposing an equitable mortgage upon the real property in the amount of $258,570.
Ordered that the order is reversed, on the law, with costs, that branch of the plaintiff's motionwhich was for summary judgment on the first cause of action is denied, and the matter isremitted to the Supreme Court, Westchester County, for a determination of that branch of theplaintiff's motion which was for summary judgment on the fourth cause of action.
In connection with the purported sale of the appellant's residence, the plaintiff lenderFremont Investment & Loan provided the funds for the satisfaction of a mortgage thereonthrough a wire transfer to the defendant Frank DeGrasse, the attorney entrusted with receivingthe loan proceeds and disbursing them to the proper parties. DeGrasse transferred the sum of$258,750.33 to the appellant's mortgagee, obtained a satisfaction of the appellant's mortgage, anddisbursed additional monies to the appellant in the sum of $22,822, but failed to record thepurported purchaser's mortgage or the deed transferring title to the subject property. Rather,DeGrasse allegedly absconded with the remaining loan proceeds. The appellant therebyremained the title owner of the residence which was, however, no longer encumbered by amortgage.
The plaintiff moved for summary judgment on the first cause of action to impose anequitable mortgage on the appellant's residence or, in the alternative, on the fourth cause ofaction to recover damages for unjust enrichment insofar as asserted against the appellant. TheSupreme [*2]Court granted that branch of the plaintiff's motionwhich was for summary judgment on the first cause of action to impose an equitable mortgageon the appellant's real property, and thus did not decide that branch of the plaintiff's motionwhich was for summary judgment on the fourth cause of action. We reverse.
"While [a] court will impose an equitable mortgage where the facts surrounding a transactionevidence that the parties intended that a specific piece of property is to be held or transferred tosecure an obligation . . . it is necessary that an intention to create such a chargeclearly appear from the language and the attendant circumstances" (Tornatore v Bruno, 12 AD3d1115, 1117-1118 [2004] [internal quotation marks and citations omitted]; seePennsylvania Oil Prods. Ref. Co. v Willrock Producing Co., 267 NY 427, 434-435 [1935];Village of Philadelphia v FortisUSEnergy Corp., 48 AD3d 1193, 1195 [2008]; see also Szerdahelyi v Harris, 110AD2d 550, 558 [1985]). Here, although the plaintiff demonstrated, prima facie, that the appellantwas unjustly enriched by the satisfaction of the mortgage and by the other disbursements shereceived (see e.g. Hamlet at Willow Cr.Dev. Co., LLC v Northeast Land Dev. Corp., 64 AD3d 85 [2009]; cf. MT Prop., Inc. v Ira Weinstein & LarryWeinstein, LLC, 50 AD3d 751 [2008]; Midwest First Fin. Ltd. Partnership III v First Am. Tit. Ins. Co. of N.Y.,14 AD3d 497 [2005]; see generally Alvarez v Prospect Hosp., 68 NY2d 320,326 [1986]), the plaintiff failed to meet its burden of establishing the intent necessary to imposean equitable mortgage (see Tornatore v Bruno, 12 AD3d at 1117-1118). Accordingly, theplaintiff failed to demonstrate its entitlement to judgment as a matter of law on the first cause ofaction.
The plaintiff's failure to make such a prima facie showing required a denial of that branch ofthe motion which was for summary judgment on the first cause of action regardless of thesufficiency of the appellant's opposing papers (see Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853 [1985]).
We do not, however, reach any issues pertaining to that branch of the plaintiff's motionwhich was for summary judgment on the fourth cause of action to recover damages for unjustenrichment, as that branch of the motion was not addressed by the Supreme Court and, thus,remains pending and undecided (seeMagriples v Tekelch, 53 AD3d 532 [2008]; Katz v Katz, 68 AD2d 536,542-543 [1979]).
The appellants' remaining contentions are without merit. Skelos, J.P., Fisher, Miller and Eng,JJ., concur.