| J.P. Morgan Chase Bank, N.A. v Cortes |
| 2012 NY Slip Op 04716 [96 AD3d 803] |
| June 13, 2012 |
| Appellate Division, Second Department |
| J.P. Morgan Chase Bank, N.A., Appellant, v MichaelJoseph Cortes et al., Respondents. |
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Spada, Ardam & Sibener, PLLC, Smithtown, N.Y. (David M. Ardam of counsel), forrespondents.
In an action, inter alia, for a judgment declaring that the plaintiff, as the holder of the subjectmortgage, has an equitable mortgage on the joint interest of the defendant Floris R. Cortes in thesubject premises, the plaintiff appeals from an order of the Supreme Court, Suffolk County(Mayer, J.), dated August 23, 2011, which denied its motion for summary judgment declaringthat it has such an equitable mortgage and, in effect, searched the record and awarded summaryjudgment to the defendants declaring that it does not have such an equitable mortgage.
Ordered that the order is affirmed, with costs, and the matter is remitted to the SupremeCourt, Suffolk County, for the entry of a judgment, inter alia, declaring that the plaintiff does nothave an equitable mortgage on the joint interest of the defendant Floris R. Cortes in the subjectpremises.
The defendants, Michael Joseph Cortes and Floris R. Cortes, husband and wife, respectively,held title to the subject property in both of their names. A substantial part of the property'spurchase price was supplied through a mortgage loan issued by the plaintiff'spredecessor-in-interest. Since the loan documents were executed in the husband's name only,when the plaintiff's predecessor-in-interest attempted to foreclose on the mortgage due tononpayment, it was unable to foreclose on the wife's joint interest in the property because she hadnot signed the loan documents. The plaintiff commenced the instant action seeking, inter alia, ajudgment declaring that it has an equitable mortgage on the joint interest of the wife in thesubject premises.
" 'While [a] court will impose an equitable mortgage where the facts surrounding atransaction evidence that the parties intended that a specific piece of property is to be held ortransferred to secure an obligation . . . it is necessary that an intention to create sucha charge clearly appear from the language and the attendant circumstances' " (Fremont Inv. & Loan v Delsol, 65AD3d 1013, 1014 [2009], quoting Tornatore v Bruno, 12 AD3d 1115, 1117-1118 [2004]). Here, theplaintiff failed to meet its burden of establishing the intent necessary to impose an equitablemortgage. Accordingly, the plaintiff failed to demonstrate its entitlement to judgment as a matterof law, and the Supreme Court properly denied the plaintiff's [*2]motion for summary judgment declaring that it has an equitablemortgage on the joint interest of the wife in the subject premises. In addition, the Supreme Courtproperly, in effect, searched the record and awarded summary judgment to the defendantsdeclaring that the plaintiff does not have an equitable mortgage on the joint interest of the wife inthe subject premises.
The plaintiff's remaining contention is not properly before this Court, as it was raised for thefirst time on appeal (see NYU Hosp. forJoint Diseases v Country Wide Ins. Co., 84 AD3d 1043, 1044 [2011]; see Polanco v Lewis Flushing Corp.,91 AD3d 624 [2012]).
Since this is, in part, a declaratory judgment action, we remit the matter to the SupremeCourt, Suffolk County, for the entry of a judgment, inter alia, declaring that the plaintiff does nothave an equitable mortgage on the joint interest of the defendant Floris R. Cortes in the subjectpremises (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371US 74 [1962], cert denied 371 US 901 [1962]; Interested Underwriters at Lloyds vMidge Rest. Corp., 283 AD2d 459 [2001]). Rivera, J.P., Dickerson, Hall and Miller, JJ.,concur.