| Deutsche Bank National Trust Co. v Feliciano |
| 2013 NY Slip Op 02531 [105 AD3d 889] |
| April 17, 2013 |
| Appellate Division, Second Department |
| Deutsche Bank National Trust Company,Respondent, v Francisco Feliciano et al., Defendants, and Sheila Ellerbe,Appellant. |
—[*1] Donald G. Davis, New York, N.Y., for respondent.
In a mortgage foreclosure action, the defendant Sheila Ellerbe appeals, as limited byher brief, from so much of an order of the Supreme Court, Suffolk County (Martin, J.),entered November 18, 2011, as denied her motion for summary judgment dismissing thecomplaint insofar as asserted against her, and granted the plaintiff's cross motion forsummary judgment dismissing certain of her defenses.
Ordered that on the Court's own motion, the notice of appeal dated December 9,2001, is deemed to be a notice of appeal by the defendant Sheila Ellerbe (seeCPLR 2001; Matter of Tagliaferri v Weiler, 1 NY3d 605, 606 [2004]); and itis further,
Ordered that the order is affirmed insofar as appealed from, with costs.
By deed dated June 24, 1999, the defendant John Ellerbe, who is not a party to thisappeal, and the defendant Sheila Ellerbe (hereinafter the appellant), as husband and wife,took possession of certain real property (hereinafter the subject property) as tenants bythe entirety. By deed dated October 27, 2004, John Ellerbe unilaterally transferred"½ interest in [the subject] property" to Jalioop Corp. (hereinafter Jalioop). By deeddated July 11, 2006, the appellant and Jalioop together transferred the subject property tothe defendant Francisco Feliciano, who is not a party to this appeal. On the same date,Feliciano mortgaged the subject property to Argent Mortgage Co. for the sum of$365,750, and executed an additional deed transferring a 99% interest in the property to"Sheila Ellerbe and John Ellerbe as husband and wife," while retaining a 1% interest inthe property for himself. Upon Feliciano's alleged default, the plaintiff, as assignee of themortgage, commenced this action to foreclose the mortgage. The appellant moved forsummary judgment dismissing the complaint insofar as asserted against her, contendingthat the tenancy by the entirety that was created in 1999 was never terminated. TheSupreme Court denied her motion, and granted the plaintiff's cross motion for summaryjudgment dismissing certain of her defenses, all of which were dependent upon thiscontention by the appellant.
Contrary to the appellant's contention, where a tenancy by the entirety is created,"there is nothing in New York law that prevents one of the co-owners from mortgagingor making an effective conveyance of his or her own interest in the tenancy. . . subject to the continuing rights [*2]ofthe other" (V.R.W., Inc. v Klein, 68 NY2d 560, 565 [1986]; see 1.2.3. Holding Corp. v ExeterHolding, Ltd., 72 AD3d 1040, 1042 [2010]). "[T]he interest acquired by agrantee or mortgagee of such a unilateral conveyance is not denominated a tenancy bythe entirety, but rather is labeled a tenancy in common"; however, "the grantee's ormortgagee's rights in the property are essentially the same as those possessed by thegrantor or mortgagor: a right to shared possession and ownership subject to the originalcotenants' reciprocal rights of survivorship" (V.R.W., Inc. v Klein, 68 NY2d at565).
However, where, as here, the interests separately conveyed away by both spouses areunified in a single grantee, the tenancy by the entirety is extinguished by merger, sincethe sequence in which the grantors die will no longer affect the disposition of title(see Matter of Birnbaum, 10 Misc 2d 82 [1957]). "Separate conveyances by eachtenant to the same grantee . . . terminate the tenancy by the entirety vestingthe entire estate in that grantee" (3-27 Warren's Weed New York Real Property §27.64 [1]). When Jalioop and the appellant conveyed their interests in the subjectproperty to Feliciano, the separate interests therein which had been subject to therespective rights of survivorship of the original tenants by the entirety were merged,thereby extinguishing the tenancy by the entirety and giving Feliciano a fully vested feetitle in the subject property. Consequently, Feliciano's conveyance of a 99% interest inthe property to the appellant and John Ellerbe, as tenants by the entirety, was subject tothe plaintiff's mortgage.
Thus, the appellant failed to establish her prima facie entitlement to judgment as amatter of law dismissing the complaint insofar as asserted against her. Moreover, theplaintiff established its prima facie entitlement to judgment as a matter of law strikingcertain of the appellant's defenses, all of which were dependent upon the appellant'scontention that the tenancy by the entirety that was created in 1999 was never terminated,and the appellant failed to raise a triable issue of fact in opposition. Accordingly, theSupreme Court properly denied the appellant's motion for summary judgment dismissingthe complaint insofar as asserted against her and granted the plaintiff's cross motion forsummary judgment striking certain of the appellant's defenses. Balkin, J.P., Chambers,Roman and Hinds-Radix, JJ., concur.