| Lend-Mor Mtge. Bankers Corp. v Nicholas |
| 2010 NY Slip Op 00224 [69 AD3d 680] |
| January 12, 2010 |
| Appellate Division, Second Department |
| Lend-Mor Mortgage Bankers Corp.,Respondent, v Edward Nicholas et al., Defendants, and Ameriquest Mortgage Company,Appellant. |
—[*1] Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone, N.Y. (Helmut Borchert andMark Krueger of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Ameriquest Mortgage Company appeals,as limited by its brief, from so much of an order of the Supreme Court, Queens County (Cullen,J.), dated September 16, 2008, as granted that branch of the plaintiff's motion which was forsummary judgment declaring that the mortgage held by the plaintiff is superior in priority to themortgage held by it, and denied that branch of its cross motion which was for summary judgmentdeclaring, inter alia, that the mortgage held by it was superior in priority to the mortgage held bythe plaintiff.
Ordered that the order is affirmed insofar as appealed from, with costs.
"Under New York's Recording Act (Real Property Law § 291), a mortgage loses itspriority to a subsequent mortgage where the subsequent mortgagee is a good-faith lender forvalue, and records its mortgage first without actual or constructive knowledge of the priormortgage" (Washington Mut. Bank, FAv Peak Health Club, Inc., 48 AD3d 793, 797 [2008]). Here, at the time the plaintiff,Lend-Mor Mortgage Bankers Corp. (hereinafter Lend-Mor), received a mortgage on the subjectproperty for the sum of $244,000, a prior mortgage in favor of the defendant AmeriquestMortgage Company (hereinafter Ameriquest) was unrecorded and did not appear in the chain oftitle. On its motion for summary judgment, Lend-Mor demonstrated its prima facie entitlement tojudgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986])by establishing that its mortgage was valid and superior in priority to Ameriquest's mortgage.Lend-Mor provided evidence establishing that it gave valuable consideration for its recordedmortgage, and that it did not have actual knowledge of Ameriquest's unrecorded mortgage orknowledge of facts that would have put it on "inquiry notice" of that mortgage (see RealProperty Law § 291; Washington Mut. Bank, FA v Peak Health Club, Inc., 48AD3d at 797). Lend-Mor obtained a title search which did not contain any indication that thesubject property was encumbered by the Ameriquest mortgage. To the contrary, both themortgage application and a credit report indicated that the Ameriquest mortgage at issueencumbered a different property. Since, in opposition, Ameriquest failed to raise a triable issueof fact, the Supreme Court correctly granted that branch of Lend-Mor's motion which [*2]was for summary judgment declaring that the mortgage held by itwas superior in priority to the mortgage held by Ameriquest (see Alvarez v Prospect Hosp.,68 NY2d at 324). Moreover, the court properly denied that branch of Ameriquest's crossmotion which was for summary judgment declaring, inter alia, that the mortgage held by it wassuperior in priority to the mortgage held by Lend-Mor.
We do not reach Ameriquest's contention concerning that branch of its cross motion whichwas to compel Lend-Mor to respond to certain discovery demands. That branch of the crossmotion was not addressed by the Supreme Court in the order appealed from and remains pendingand undecided (see Mobarak v Mowad,55 AD3d 693, 694 [2008]; Magriples v Tekelch, 53 AD3d 532 [2008]; Moncrief v DiChiaro, 52 AD3d789, 790 [2008]; Katz v Katz, 68 AD2d 536, 543 [1979]). Rivera, J.P., Miller,Dickerson and Roman, JJ., concur.