| 2 Lisa Ct. Corp. v Licalzi |
| 2011 NY Slip Op 07834 [89 AD3d 721] |
| November 1, 2011 |
| Appellate Division, Second Department |
| 2 Lisa Court Corp., as Assignee of J.T.D. Enterprises of LongIsland, Inc., Appellant, v Edward Licalzi et al., Defendants, and Bayview LoanServicing, LLC, Respondent. |
—[*1] Fidelity National Law Group, New York, N.Y. (Danielle Simone of counsel), forrespondent.
In an action, inter alia, to foreclose a mortgage, the plaintiff appeals from (1) an order of theSupreme Court, Suffolk County (Whelan, J.), dated May 19, 2010, which granted the motion ofthe defendant Bayview Loan Servicing, LLC, for summary judgment dismissing the complaintinsofar as asserted against it and, in effect, for summary judgment on its counterclaim for ajudgment declaring that its mortgage is superior in priority to the mortgage held by the plaintiff,and (2) a judgment of the same court entered August 25, 2010, which, upon the order, is in favorof the defendant Bayview Loan Servicing, LLC, and against the plaintiff, dismissing thecomplaint insofar as asserted against that defendant and declaring that the mortgage of thatdefendant is superior in priority to the mortgage held by the plaintiff.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
"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]; see Lend-Mor Mtge. Bankers Corp. v Nicholas, 69 AD3d 680[2010]; see also 1-1 Bergman on New York Mortgage Foreclosures § 1.21). Here,the defendant Bayview Loan Servicing, LLC (hereinafter Bayview), demonstrated its entitlementto judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]) byshowing that the mortgage it now holds is superior in priority to the mortgage the plaintiff [*2]now holds. Bayview's evidentiary submissions established that themortgage it holds was executed prior to the execution of the mortgage held by the plaintiff'sassignor, J.T.D. Enterprises of Long Island, Inc. (hereinafter JTD), and that JTD had actualknowledge of its existence because JTD's president was present at the loan closing. Thus, themortgage held by JTD could not take priority over Bayview's mortgage, even though JTDrecorded first. Further, since the assignee never stands in any better position than his or herassignor (see Matter of International Ribbon Mills [Arjan Ribbons], 36 NY2d 121, 126[1975]; TPZ Corp. v Dabbs, 25AD3d 787, 789 [2006]), JTD's assignee, the plaintiff, cannot take priority over Bayview'smortgage.
In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City ofNew York, 49 NY2d 557 [1980]). Accordingly, the Supreme Court properly grantedBayview's motion for summary judgment dismissing the complaint insofar as asserted against itand, in effect, for summary judgment on its counterclaim declaring that its mortgage is superiorin priority to the mortgage held by the plaintiff. Dillon, J.P., Balkin, Eng and Cohen, JJ., concur.