| Baron Assoc. v Latorre |
| 2010 NY Slip Op 04722 [74 AD3d 714] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Baron Associates, Respondent, v Silvia V. Latorre et al.,Defendants, and Rose M. Rotondo, Appellant. |
—[*1] Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C., Yonkers, N.Y. (StephenI. Wohlberg of counsel), for respondent.
In an action to foreclose a mortgage and cancel a satisfaction of mortgage filed with theOffice of the City Register of the City of New York for Queens County, the defendant Rose M.Rotondo appeals from an order of the Supreme Court, Queens County (Sampson, J.), datedNovember 24, 2009, which denied those branches of her, in effect, renewed motion which were,in effect, for summary judgment dismissing so much of the first cause of action as was to cancelthe satisfaction of mortgage on the ground of fraud and the second cause of action forforeclosure insofar as asserted against her, and to cancel the notice of pendency.
Ordered that the order is reversed, on the law and the facts, with costs, those branches of the,in effect, renewed motion of the defendant Rose M. Rotondo which were for summary judgmentdismissing so much of the first cause of action as was to cancel the satisfaction of mortgage onthe ground of fraud and the second cause of action for foreclosure insofar as asserted against her,and to cancel the notice of pendency, are granted.
In or about December 1999, the defendants Aureliano A. Caba, Rosman Plasencia, Luis J.Espinal, and Jorge Diaz, executed a mortgage note in the sum of $100,000. As security for thenote, they executed and delivered to the plaintiff a mortgage covering two Queens properties,one located in Woodhaven and the other in Richmond Hill. In September 2001 the Woodhavenproperty was sold, and the plaintiff, upon being paid the sum of $52,487.75, released thepremises from the mortgage lien. In October 2002 a satisfaction of mortgage pertaining to theRichmond Hill property was recorded in the office of the City Register of the City of New Yorkfor Queens County. A satisfaction cover sheet accompanying the satisfaction of mortgagereferenced both the Woodhaven property and the Richmond Hill property. In April 2003 theRichmond Hill property, which consisted of one residential condominium unit, was sold to thedefendant Iris Vargas, who, in turn, sold it to the defendant Rose M. Rotondo in June 2005.Rotondo's deed to the Richmond Hill property was recorded on June 22, 2005.
In January 2006 the plaintiff commenced this action alleging, inter alia, that the satisfactionof mortgage was fraudulently executed and was procured by fraud. The plaintiff sought, [*2]among other things, to cancel the satisfaction of mortgage andreinstate the mortgage, and also sought a judgment of foreclosure.
In early 2008 Rotondo moved for summary judgment dismissing the complaint insofar asasserted against her. In an order dated September 3, 2008, the Supreme Court granted that branchof Rotondo's motion which was for summary judgment dismissing so much of the first cause ofaction as was to cancel the satisfaction of mortgage on the ground of forgery insofar as assertedagainst her. The Supreme Court denied those branches of Rotondo's motion which were forsummary judgment dismissing so much of the first cause of action as was to cancel thesatisfaction of mortgage on the ground of fraud and the second cause of action for foreclosureinsofar as asserted against her, and to cancel the notice of pendency, without prejudice torenewal upon completion of discovery.
In July 2009 Rotondo, in effect, renewed her prior motion for summary judgment, and theSupreme Court denied the motion. We reverse.
The Supreme Court should have granted those branches of Rotondo's, in effect, renewedmotion which were, in effect, for summary judgment dismissing so much of the first cause ofaction as was to cancel the satisfaction of mortgage on the ground of fraud and the second causeof action for foreclosure insofar as asserted against her, and to cancel the notice of pendency.Rotondo demonstrated that, in June 2005, when she purchased the Richmond Hill property forvalue from Vargas, the satisfaction of mortgage had already been duly recorded. She was entitledto rely on the satisfaction of mortgage without conducting any further inquiry (see Bacon vVan Schoonhoven, 87 NY 446 [1882]; Regions Bank v Campbell, 291 AD2d 437[2002]). Moreover, Rotondo's deed was recorded on June 22, 2005, and the plaintiff did notcommence this action and file its notice of pendency until January 2006. Thus, at the timeRotondo purchased the Richmond Hill property, she was not on notice of any prior interest inthat property which would lead a reasonably prudent purchaser to make inquiry (see Fischer v Sadov Realty Corp., 34AD3d 630, 631 [2006]), and there was nothing on the face of the satisfaction of mortgagewhich would have alerted Rotondo to the plaintiff's claims (see Andy Assoc. v Bankers TrustCo., 49 NY2d 13, 22 [1979]). In opposition, the plaintiff failed to raise a triable issue of fact(see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
The plaintiff's remaining contentions are either improperly raised for the first time on appealor without merit. Dillon, J.P., Balkin, Belen and Lott, JJ., concur.