| Acocella v Bank of N.Y. Mellon |
| 2015 NY Slip Op 03109 [127 AD3d 891] |
| April 15, 2015 |
| Appellate Division, Second Department |
[*1](April 15, 2015)
| Frank A. Acocella et al., Appellants, v Bank ofNew York Mellon, Formerly Known as Bank of New York, et al.,Respondents. |
Sheila A. Murphy, Purchase, N.Y., for appellants.
Bryan Cave LLP, New York, N.Y. (Suzanne M. Berger and Christine L. Andreoli ofcounsel), for respondents.
In an action pursuant to RPAPL article 15 to quiet title to real property, the plaintiffsappeal, as limited by their brief, from so much of an order of the Supreme Court,Westchester County (Smith, J.), dated June 20, 2013, as granted that branch of thedefendants' motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaintinsofar as asserted against the defendant Bank of New York Mellon, formerly known asBank of New York, and denied that branch of their cross motion which was for summaryjudgment on the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
In this action pursuant to RPAPL article 15, the plaintiffs seek, inter alia, to cancel amortgage against their premises, claiming that a 2011 assignment of the mortgage was anullity because it was made without a corresponding written assignment or physicaldelivery of the underlying mortgage note to the assignee.
According to the complaint, on September 24, 2004, the plaintiff Frank A. Acocellaexecuted a note to borrow the sum of $546,000 from the First Magnus FinancialCorporation (hereinafter First Magnus). The note was secured by a mortgage against theplaintiffs' premises in Harrison, New York. The mortgage and note were recorded onJanuary 3, 2005. Over six years later, on October 4, 2011, Mortgage ElectronicRegistration Systems, Inc. (hereinafter MERS), as nominee for First Magnus, assignedthe mortgage to the defendant Bank of New York Mellon, formerly known as Bank ofNew York (hereinafter BNYM).
The note was subsequently endorsed by First Magnus to Countrywide DocumentCustody Services (hereinafter Countrywide Document), and thereafter endorsed byCountrywide Document to Countrywide Home Loans, Inc. (hereinafter CountrywideHome). Countrywide Home then endorsed the note without recourse in blank. Thecomplaint asserted that the mortgage loan was current and that there was no pendingforeclosure action against the plaintiffs.
The complaint demands that the defendants and every person claiming under them[*2]be barred from all claims to an estate or interest in thesubject property, that the court determine that the plaintiffs are vested with absolute titlein fee simple to the subject property free and clear of the note and mortgage, that themortgage be discharged and cancelled of record, and that the plaintiffs recover all costspaid to the defendants after the October 4, 2011, assignment of the mortgage, whichtotals $92,489.28.
The defendants moved, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint insofar as asserted against BNYM on the grounds that the plaintiffs' claimswere not justiciable, and that even if they were justiciable, there was no basis in law orfact for the relief requested. The plaintiffs opposed the motion and, despite the fact thatissue had not yet been joined, cross-moved for summary judgment on the complaint,submitting documentary evidence. The plaintiffs argued that the documentary evidenceshowed that while the note had been endorsed by First Magnus in favor of CountrywideDocument, and endorsed by Countrywide Document in favor of Countrywide Home, andthen endorsed by Countrywide Home in blank, the mortgage had been assigned directlyfrom First Magnus to BNYM, skipping over Countrywide Home. The plaintiffsmaintained that the transfer of the mortgage without the note made the mortgage anullity, and discharge of the mortgage was therefore required.
In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court isrequired to accept the facts as alleged in the complaint as true, accord the plaintiffs thebenefit of every favorable inference, and determine whether the facts as alleged fit withinany cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994])."To maintain an equitable quiet title claim, a plaintiff must allege actual or constructivepossession of the property and the existence of a removable 'cloud' on the property,which is an apparent title, such as in a deed or other instrument, that is actually invalid orinoperative" (Barberan v Nationpoint, 706 F Supp 2d 408, 418 [SD NY 2010];see RPAPL 1515). Accepting the factual allegations in the complaint as true, andaccording the plaintiffs every favorable inference, the allegations in the complaint hereinnevertheless fail to set forth the existence of a bona fide justiciable controversy as towhether title to the subject property is wrongfully encumbered (see Jahan v U.S.Bank N.A., 127 AD3d 926 [2015] [decided herewith]; Benson v Deutsche Bank Natl. Trust, Inc., 109 AD3d 495,498 [2013]).
To the extent that the plaintiffs' allegations challenge the current standing of any ofthe defendants to maintain a foreclosure action (see generally Bank of N.Y. v Silverberg, 86 AD3d 274,280 [2011]), it is undisputed that the plaintiffs are not in default and there is no pendingforeclosure action in existence or being threatened. Moreover, the plaintiffs do not allegethat any entity other than BNYM is claiming an interest in the mortgage or an entitlementto payments on the mortgage debt. Therefore, the Supreme Court properly determinedthat there is no justiciable controversy (see Jahan v U.S. Bank N.A., 127 AD3d 926 [2015] [decided herewith]).
With respect to their cross motion for summary judgment, the evidence submitted bythe plaintiffs failed to establish that the subject mortgage was invalid. The plaintiffs alsofailed to establish any additional ground upon which they would be entitled to the reliefrequested, including, but not limited to, proof that they satisfied the mortgage (seeReal Property Law § 275).
The plaintiffs' remaining contentions are without merit.
Accordingly, the Supreme Court properly granted that branch of the defendants'motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar asasserted against BNYM and denied that branch of the plaintiffs' cross motion which wasfor summary judgment on the complaint. Balkin, J.P., Roman, Sgroi and LaSalle, JJ.,concur.