| Datena v JP Morgan Chase Bank |
| 2010 NY Slip Op 03863 [73 AD3d 683] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Sandra Datena, Appellant, v JP Morgan Chase Bank,Respondent, et al., Defendant. |
—[*1] Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, N.Y. (Jacqueline M. Della Chiesaof counsel), for respondent.
In an action, inter alia, pursuant to RPAPL article 15 to compel the determination of claimsto real property, the plaintiff appeals from an order of the Supreme Court, Nassau County(Mahon, J.), entered April 27, 2009, which granted the motion of the defendant JP MorganChase Bank pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as assertedagainst it.
Ordered that the order is affirmed, with costs.
According to a deed filed in the Nassau County Clerk's office on August 1, 2003, theplaintiff and her daughter, the defendant Reba Singh, took title to real property located inBaldwin (hereinafter the subject property) as joint tenants on July 21, 2003. Thereafter, when thedefendant JP Morgan Chase Bank (hereinafter the Bank) docketed a money judgment obtainedagainst Singh with the Nassau County Clerk's office, that judgment became a lien on theproperty. The plaintiff commenced this action against the Bank and Singh seeking, among otherrelief, to remove the judgment lien on the property on the ground that Singh was not a jointowner of the real property. According to the plaintiff, Singh was listed as a joint owner becauseof the plaintiff's desire "to make Singh a co-owner solely as a testamentary substitute." After theplaintiff commenced this action, the Bank moved to dismiss the complaint pursuant to CPLR3211 (a) (1) and (7).
A complaint may be dismissed if "documentary evidence . . . 'resolves allfactual issues as a matter of law, and conclusively disposes of the plaintiff's claim' " (Sullivan v State of New York, 34AD3d 443, 445 [2006], quoting Nevin v Laclede Professional Prods., 273 AD2d453, 453 [2000]; CPLR 3211 [a] [1]). On a motion pursuant to CPLR 3211 (a) (7) to dismiss acomplaint, the allegations in the complaint are accepted as true and accorded the benefit of everypossible favorable inference to determine if the facts, as alleged, fit within any cognizable legaltheory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Whether the plaintiff canprove her allegations is not part of the calculus in this determination (see EBC I, Inc. v Goldman, Sachs &Co., 5 NY3d 11, 19 [2005]). Dismissal may result if the movant satisfies its "burden ofsubmitting documentary evidence that 'resolves all factual issues [*2]as a matter of law, and conclusively disposes of the plaintiff'sclaim' " (Sullivan v State of New York, 34 AD3d at 445, quoting Nevin v LacledeProfessional Prods., 273 AD2d at 453).
The deed recorded by the plaintiff clearly and unambiguously states that she took title to thesubject property as a joint tenant with Singh. Therefore, the wording in the deed listing thegrantees "as joint tenants" submitted by the defendant in support of the motion to dismiss cannotbe varied by parol evidence (see Loch Sheldrake Assoc. v Evans, 306 NY 297 [1954];Coleman v Village of Head of Harbor, 163 AD2d 456 [1990]). The unambiguouslanguage in the deed establishes that Singh is a joint tenant and, thus, negates a material elementof the plaintiff's cause of action against the Bank (see CPLR 5203; Kelly v Schwend, 15 AD3d 450[2005]; Mayerhoff v Timenides, 269 AD2d 369 [2000]). Under these circumstances, theplaintiff does not have a cause of action against the Bank.
The plaintiffs' contention that Banking Law § 675 requires a different result is notproperly before this Court because it was not raised before the Supreme Court (see Vingo v Rosner, 29 AD3d 896[2006]). Prudenti, P.J., Fisher, Roman and Sgroi, JJ., concur.