| JP Morgan Chase Bank, N.A. v Mbanefo |
| 2014 NY Slip Op 08405 [123 AD3d 669] |
| December 3, 2014 |
| Appellate Division, Second Department |
[*1]
| JP Morgan Chase Bank, N.A., as Successor by Mergerto Washington Mutual Bank F.A., Appellant, v Joseph Mbanefo,Respondent. |
Butler, Fitzgerald, Fiveson & McCarthy, A Professional Corporation, NewYork, N.Y. (David K. Fiveson of counsel), for appellant.
Zinker & Herzberg, LLP, Smithtown, N.Y. (Jeffrey Herzberg of counsel), forrespondent.
In an action, in effect, to compel the Suffolk County Clerk to accept for recording acopy of a mortgage, the plaintiff appeals from an order of the Supreme Court, SuffolkCounty (Asher, J.), dated July 9, 2012, which granted the defendant's motion to dismissthe complaint pursuant to CPLR 3211 (a).
Ordered that the order is affirmed, with costs.
The plaintiff JP Morgan Chase Bank, N.A. (hereinafter Chase), as successor bymerger to Washington Mutual Bank F.A., commenced this action in June 2012, seeking,in effect, to compel the Suffolk County Clerk to accept for recording a copy of amortgage that allegedly was executed on October 19, 2005, the original of which was notrecorded because it allegedly was lost or destroyed. The sole named defendant in theaction was the mortgage debtor. Chase characterized its cause of action as one pursuantto RPAPL 1515 to "quiet title" to its "mortgage interest" in the mortgaged premises.
The defendant moved to dismiss the complaint pursuant to CPLR 3211 (a). In anaffirmation submitted in support of the motion, the defendant's attorney alleged that thecomplaint failed to state a cause of action, and that the action was time-barred. Thedefendant argued that the action was actually one for a judgment authorizing therecording of an equitable mortgage, governed by a six-year statute of limitations (seeCPLR 213 [1]; Collucci v Collucci, 58 NY2d 834, 836 [1983]). In thealternative, the defendant asked the court to dismiss the action pursuant to CPLR 3211(a) on the ground that Chase failed to demonstrate that the parties intended for thedefendant to mortgage the subject property in the first instance.
In opposition, Chase argued that the mortgage in question was not an equitablemortgage but, rather, was a copy of an "actual mortgage duly executed and delivered" bythe defendant, and that this action was therefore governed by the 10-year statue oflimitations set forth in CPLR 212 (a), applicable to actions to recover possession of, orquiet title to, real property.
[*2] In the orderappealed from, the Supreme Court concluded that the cause of action alleged was not acause of action to quiet title and, therefore, was not governed by the 10-year statute oflimitations set forth in CPLR 212, but, rather, was governed by the "catch-all" six-year statute of limitations articulated by CPLR 213 (1), and that the action thereforewas time-barred. The court further stated that "nothing in this order should be read toimpugn the validity of the mortgage."
We affirm the order, but for a reason other than that relied upon by the SupremeCourt. We agree with the Supreme Court that Chase did not state a cause of action toquiet title, since this is not an action to recover ownership or possession of real property(cf. Sumner v Sumner, 217 App Div 163, 164 [1926]). However, Chase also didnot state a cause of action to compel the Suffolk County Clerk to accept the mortgage forrecording, since it is not alleged in the complaint that the copy of the mortgage was validon its face, a necessary element of a cause of action to compel a county clerk to record amortgage (see Matter ofMerscorp, Inc. v Romaine, 24 AD3d 673, 674 [2005], affd 8 NY3d 90[2006]). Since a viable cause of action was not asserted, it cannot be determined whatlimitations period applies, and when the cause of action accrued. Accordingly, theSupreme Court should have directed the dismissal of the complaint for failure to state acause of action.
Chase's contention that it should be permitted to amend the complaint to assert aviable cause of action is not properly before this Court. Rivera, J.P., Hinds-Radix, Duffyand LaSalle, JJ., concur.