| City of New York v Brooklyn, LLC |
| 2011 NY Slip Op 05010 [85 AD3d 707] |
| June 7, 2011 |
| Appellate Division, Second Department |
| City of New York, Appellant, v Brooklyn, LLC, et al.,Respondents, et al., Defendants. |
—[*1] Herrick, Feinstein, LLP, New York, N.Y. (M. Darren Traub of counsel), for respondentsBrooklyn, LLC, and Millennium Abstract Corp. Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone, N.Y. (Helmut Borchert ofcounsel), for respondent Berkshire Credit, LLC.
In an action to quiet title to real property, the plaintiff appeals, as limited by its brief, from somuch of an order of the Supreme Court, Kings County (Velasquez, J.), dated December 18, 2009,as granted the motion of the defendants Brooklyn, LLC, and Millennium Abstract Corp. forsummary judgment dismissing the complaint insofar as asserted against them, and granted theseparate motion of Berkshire Credit, LLC, for summary judgment dismissing the complaintinsofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costspayable by the respondents appearing separately and filing separate briefs, and the motions aredenied.
On a prior appeal in this matter, this Court concluded that the Supreme Court erred ingranting the motion of the defendants Brooklyn, LLC (hereinafter Brooklyn), and MillenniumAbstract Corp. (hereinafter Millennium) for summary judgment dismissing the complaint insofaras asserted against them (see City ofNew York v Brooklyn LLC, 41 AD3d 523 [2007]). This Court determined that "theplaintiff raised a triable issue of fact as to whether a diligent title searcher should have discoveredthe plaintiff's interest" in the subject property (id. at 524). Although there is a generalproscription against successive motions for summary judgment, the present motion of Brooklynand Millennium for summary judgment was supported by new evidence and, therefore wasproperly considered on the merits (seeEDP Hosp. Computer Sys., Inc. v Bronx-Lebanon Hosp. Ctr., 63 AD3d 665 [2009]).
Nevertheless, the motion of Brooklyn and Millennium for summary judgment, and themotion of the defendant Berkshire Credit, LLC (hereinafter Berkshire), for summary judgment,should have been denied. Brooklyn, Millennium, and Berkshire established their entitlement tojudgment as a matter of law with experts' affidavits indicating that their title searches werediligently performed, and a diligent title searcher would not have discovered the plaintiff'sinterest in the [*2]property.
In response, however, the plaintiff submitted an expert's affidavit raising a triable issue offact as to whether a diligent title searcher should have discovered the plaintiff's interest (seeAndy Assoc. v Bankers Trust Co., 49 NY2d 13, 24 [1979]; Farrell v Sitaras, 22 AD3d 518,520 [2005]). In particular, the plaintiff points to facts which it claims should have put the titlesearcher on inquiry notice of the plaintiff's possible interest in the property (see Stracham v Bresnick, 76 AD3d1009, 1010 [2010]; Booth vAmeriquest Mtge. Co., 63 AD3d 769 [2009]). When contradictory expert opinions areoffered on a motion for summary judgment, credibility must be resolved by the factfinder (see Pierre-Louis v DeLonghi Am., Inc.,66 AD3d 859, 862 [2009]; Menzel v Plotnick, 202 AD2d 558 [1994]). Accordingly,the motions for summary judgment should have been denied. Prudenti, P.J., Angiolillo, Florioand Cohen, JJ., concur. [Prior Case History: 26 Misc 3d 1215(A), 2009 NY Slip Op52722(U).]