| Cashel v Cashel |
| 2009 NY Slip Op 06659 [65 AD3d 1182] |
| September 22, 2009 |
| Appellate Division, Second Department |
| Thomas P. Cashel, Plaintiff, v Francine Cashel, Defendant.(Action No. 1.) Thomas P. Cashel, Respondent, v Francine Cashel et al., Defendants, andMortgage Electronic Registration Systems, Inc., et al., Appellants. (Action No. 2.) MortgageElectronic Registration Systems, Inc., Appellant, v Francine Parziale Cashel et al., Respondents.(Action No. 3.) |
—[*1] Saltzman Chetkof & Rosenberg, LLP, Garden City, N.Y. (William B. Saltzman and MichaelChetkof of counsel), for Thomas P. Cashel, respondent in action Nos. 2 and 3. England & England, P.C., Centereach, N.Y. (Donna England of counsel), for FrancineParziale Cashel, respondent in action No. 3.
In three related actions, inter alia, for a divorce and ancillary relief (action No. 1), to setaside a deed on the basis of fraud (action No. 2), and to foreclose a mortgage (action No. 3),which were joined for trial, Mortgage Electronic Registration Systems, Inc., a defendant inaction No. 2 and the plaintiff in action No. 3, and Fremont Investment & Loan, a defendant inaction No. 2, appeal, as limited by their brief, from so much of an order of the Supreme Court,Suffolk County (Crecca, J.), dated April 28, 2008, as denied those branches of their motionwhich were for summary judgment dismissing the first cause of action in action No. 2 insofar asasserted against them, to strike the answer and defenses of the defendants in action No. 3, forsummary judgment on the complaint in action No. 3, or alternatively, to direct the defendantThomas P. Cashel to satisfy the subject mortgage should he prevail on his claims in action No. 3,and to appoint a referee to compute the amount due on the subject note and mortgage and toascertain whether the premises should be sold as one parcel in action No. 3.
Ordered that the appeal from so much of the order as denied those branches of the [*2]appellants' motion which were to strike the answer and defenses ofthe defendants in action No. 3, for summary judgment on the complaint in action No. 3, oralternatively, to direct the defendant Thomas P. Cashel to satisfy the subject mortgage should heprevail on his claims in action No. 3, to appoint a referee to compute the amount due on thesubject note and mortgage and to ascertain whether the premises should be sold as one parcel inaction No. 3, is dismissed as academic; and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the appellants' motion which was for summary judgment dismissing the first cause ofaction in action No. 2 insofar as asserted against them, and substituting therefor a provisiongranting that branch of the motion; as so modified, the order is affirmed insofar as reviewed,with costs to the appellants.
Action No. 1 is an action for divorce and ancillary relief, commenced by Thomas P. Cashel(hereinafter Thomas) against Francine Cashel (hereinafter Francine), and is not a subject of thisappeal. Action No. 2 involves property located in Ronkonkoma (hereinafter the Ronkonkomaproperty). In November 2001 Thomas acquired title to the property. In June 2002 a deed wasexecuted transferring title to the property to Francine. The same day, Francine executed amortgage on the property in favor of Flagstar Bank and turned over most of the proceeds fromthe mortgage to Thomas. Thomas claims that in June 2004, while preparing to file for divorce, hediscovered that Francine forged his name on a deed which transferred title to the Ronkonkomaproperty from him to her. He filed a notice of pendency on the property in August 2004. Shortlythereafter, Francine executed a mortgage on the Ronkonkoma property in favor of FremontInvestment & Loan (hereinafter Fremont).
In action No. 2, Thomas sought, inter alia, in the first cause of action, to have the deed to theRonkonkoma property set aside as a forgery and to cancel all mortgages given on theRonkonkoma property on or after June 6, 2002.
The appellants Mortgage Electronic Registration Systems, Inc. (hereinafter MERS) andFremont, moved, inter alia, for summary judgment dismissing the first cause of action in actionNo. 2 insofar as asserted against them, arguing that, by accepting proceeds from the FlagstarBank mortgage loan, Thomas ratified the forgery and, therefore, the deed should not be set aside.
Ratification may be implied when "the principal retains the benefit of an unauthorizedtransaction with knowledge of the material facts" (Standard Funding Corp. v Lewitt, 89NY2d 546, 552 [1997]; see Della Rocco v City of Schenectady, 278 AD2d 628 [2000];Banque Nationale de Paris v 1567 Broadway Ownership Assoc., 214 AD2d 359 [1995];De Tata v Tress, 4 AD2d 748 [1957]).
Here, MERS and Fremont met their prima facie burden of establishing their entitlement tojudgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]) bydemonstrating that Thomas had knowledge of the material circumstances surrounding the allegedforgery such that he ratified the deed. Thomas admitted that he retained the benefits of theFlagstar Bank mortgage loan and also admitted his awareness that these benefits came from theproceeds of the mortgage loan, and thereby failed to raise a triable issue of fact in opposition tothe motion. Thus, the Supreme Court should have granted that branch of the motion of MERSand Fremont which was for summary judgment dismissing the first cause of action in action No.2 insofar as asserted against them.
In view of a subsequent order of the Supreme Court, Suffolk County, dated April 17, 2009,granting those branches of the appellants' renewed motion in action No. 3 which were to strikethe defendants' answer and defenses, for summary judgment on the complaint, to appoint areferee to compute the amount due on the subject note and mortgage and to ascertain whether thepremises should be sold as one parcel, we dismiss, as academic, the appeal from so much of theorder dated April 28, 2008, as denied those branches of the appellants' motion. Skelos, J.P.,Florio, Leventhal and Hall, JJ., concur.