| Countrywide Home Loans Inc. v Dombek |
| 2009 NY Slip Op 09606 [68 AD3d 1041] |
| December 22, 2009 |
| Appellate Division, Second Department |
| Countrywide Home Loans Inc., Respondent, v MichaelDombek, Respondent, and Mortgage Electronic Registration Systems, Inc., Appellant, et al.,Defendants. RBC Mortgage Company, Nonparty Appellant. |
—[*1] Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, N.Y. (Linda P. Manfredi ofcounsel), for plaintiff-respondent.
In an action to foreclose a mortgage, the defendant Mortgage Electronic RegistrationSystems, Inc., and the nonparty RBC Mortgage Company appeal, as limited by their brief, fromso much of an order of the Supreme Court, Nassau County (Brandveen, J.), dated April 18, 2008,as granted those branches of the plaintiff's motion which were for summary judgment on thecomplaint and to strike the affirmative defense of equitable subrogation asserted in the answer,and denied their cross motion for summary judgment on the affirmative defense of equitablesubrogation.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the plaintiff's motion which were for summary judgment on the complaint andto strike the affirmative defense of equitable subrogation asserted in the answer, and substitutingtherefor a provision denying those branches of the motion; as so modified, the order is affirmedinsofar as appealed from, without costs or disbursements.
On July 28, 2005 the defendant Michael Dombek gave a mortgage to the plaintiff, which wassecured by certain real property. The mortgage was recorded on August 25, 2005, which wasnine days after Dombek gave another mortgage secured by the same real property to thedefendant Mortgage Electronic Registration Systems, Inc., as a nominee for the nonparty RBCMortgage Company (hereinafter together the appellants), which mortgage was recorded onSeptember 14, 2005. The proceeds of the appellants' mortgage were used to satisfy a prior andmore senior purchase-money mortgage given by Dombek First National Bank of Arizona in2004, which mortgage the plaintiff also held by virtue of an assignment.
In this foreclosure action commenced by the plaintiff after Dombek defaulted under the July2005 mortgage, the appellants contend that the doctrine of equitable subrogation applies so thattheir lien is to be given priority over the plaintiff's lien (see Bank One v Mon Leang Mui,38 AD3d [*2]809 [2007], citing King v Pelkofski, 20NY2d 326 [1967]). Given the existence of triable issues of fact as to whether the appellants wereon notice of the July 2005 mortgage at the time they executed their mortgage, the Supreme Courterred in granting those branches of the plaintiff's motion which were for summary judgment onthe complaint and to strike the affirmative defense of equitable subrogation asserted in theanswer (see King v Pelkofski, 20 NY2d 326 [1967]; Roth v Porush, 281 AD2d612 [2001]; cf. LaSalle Bank Natl. Assn. v Ally, 39 AD3d 597 [2007]). Skelos, J.P.,Eng, Austin and Roman, JJ., concur. [Prior Case History: 2008 NY Slip Op 31241(U).]