| Bank of N.Y. v Penalver |
| 2015 NY Slip Op 01406 [125 AD3d 795] |
| February 18, 2015 |
| Appellate Division, Second Department |
[*1](February 18, 2015)
| Bank of New York, on Behalf of the Certificate Holders, CWABS, Inc., Asset-Backed Certificates, Series 2007-7,Respondent, v Jean Penalver et al., Defendants, and Joshua Nesbitt,Appellant. |
Joshua Nesbitt, Fort Washington, Maryland, appellant pro se.
Hoefeimer, Gartlir & Gross, LLP, New York, N.Y. (David L. Birch andDouglas Gross of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Joshua Nesbitt appeals from anorder and judgment (one paper) of the Supreme Court, Richmond County (Minardo, J.),entered September 20, 2012, which granted those branches of the plaintiff's motionwhich were for summary judgment declaring that the plaintiff is equitably subrogated tothe rights of a prior mortgagee, has an equitable first mortgage on the subject property inthe principal sum of $109,237.57, and has an equitable first lien on the property in theprincipal sum of $30,179.48, and thereupon made the declaration.
Ordered that the order and judgment is affirmed, with costs.
The doctrine of equitable subrogation "is broad enough to include every instance inwhich one party pays a debt for which another is primarily answerable and which inequity and good conscience should have been discharged by the latter, so long as thepayment was made either under compulsion or for the protection of some interest of theparty making the payment, and in discharge of an existing liability" (Gerseta Corp. vEquitable Trust Co. of N.Y., 241 NY 418, 425-426 [1926]; see Hamlet at Willow Cr. Dev. Co.,LLC v Northeast Land Dev. Corp., 64 AD3d 85, 105-106 [2009]).
Here, the documentary evidence submitted by the plaintiff on its motion for summaryjudgment established that, of the mortgage proceeds it loaned to the defendants JeanPenalver and Joshua Nesbitt in 2007, the sum of $109,237.57 was allocated to satisfy anexisting mortgage upon the subject real property (see LaSalle Bank Natl. Assn. v Ally, 39 AD3d 597,600-601 [2007]; Federal Natl. Mtge. Assn. v Woodbury, 254 AD2d 182 [1998];Zeidel v Dunne, 215 AD2d 472, 474 [1995]). In opposition, the defendant JoshuaNesbitt failed to raise a triable issue of fact (see generally Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). Accordingly, the Supreme Court properly grantedthat branch of the plaintiff's motion which was for summary judgment declaring that theplaintiff has an equitable first mortgage on the property in the principal sum of$109,237.57.
Nesbitt's remaining contentions are without merit. Rivera, J.P., Balkin, Duffy andLaSalle, JJ., concur.