| Matter of Hill |
| 2012 NY Slip Op 03449 [95 AD3d 889] |
| May 1, 2012 |
| Appellate Division, Second Department |
| In the Matter of Lillian Hill, Deceased. Marcia Fitzsimmons,Respondent; Mortgage Electronic Registration Systems, Inc., Appellant, et al.,Respondent. |
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Marcia Fitzsimmons, New Windsor, N.Y., petitioner-respondent pro se.
In a turnover proceeding pursuant to SCPA article 21, inter alia, to recover real property,Mortgage Electronic Registration Systems, Inc., appeals from an order of the Surrogate's Court,Queens County (Kelly, S.), dated April 12, 2011, which denied that branch of its motion whichwas for summary judgment dismissing the petition insofar as asserted against it.
Ordered that the order is affirmed, with costs.
This appeal involves real property in Queens which was previously owned by the decedent,Lillian Hill. The petitioner, Marcia Fitzsimmons, and the respondent Brenda Watson are thesurviving children of the decedent. Watson allegedly improperly obtained sole title to the subjectproperty. In her petition, Fitzsimmons seeks, inter alia, to direct Watson to turn over the property.The petition also named as a respondent Mortgage Electronic Registration Systems, Inc.(hereinafter MERS), which holds a mortgage on the property in connection with a $215,000 loanmade to Watson in September 2009. MERS moved, inter alia, for summary judgment dismissingthe petition insofar as asserted against it on the basis that it was a bona fide encumbrancer forvalue. The Surrogate's Court denied the motion.
"[I]f a purchaser or encumbrancer knows facts that would 'excite the suspicion of anordinarily prudent person' and fails to investigate, the purchaser or encumbrancer will bechargeable with that knowledge which a reasonable inquiry, as suggested by the facts, wouldhave revealed" (Booth v AmeriquestMtge. Co., 63 AD3d 769, 769 [2009], quoting Anderson v Blood, 152 NY 285,293 [1897]). A mortgagee who does not make such inquiry will not be considered a bona fideencumbrancer for value (see Vitale v Pinto, 118 AD2d 774 [1986]). Here, MERSsubmitted documentary evidence in support of its motion for summary judgment whichestablished its prima facie entitlement to judgment as a matter of law (see generally Leandre vSharperson, 96 AD2d 883 [1983]). However, in opposition thereto, the petitioner raised atriable issue of fact as to whether MERS had knowledge of facts of such nature that would have"excit[ed] the suspicion of an ordinarily prudent person" (Anderson v Blood, 152 NY at293), and yet failed to make any investigation. Therefore, that branch of MERS's motion whichwas for summary judgment dismissing the petition insofar as asserted against it was properly[*2]denied (see Booth v Ameriquest Mtge. Co., 63 AD3d 769 [2009]; seegenerally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Mastro, A.P.J., Balkin, Sgroi andCohen, JJ., concur.