| Jahan v U.S. Bank N.A. |
| 2015 NY Slip Op 03130 [127 AD3d 926] |
| April 15, 2015 |
| Appellate Division, Second Department |
[*1]
| Noor Jahan, Appellant, v U.S. Bank NationalAssociation, as Trustee for Bear Stearns Asset-Backed Securities I Trust 2006-AC2, etal., Respondents, et al., Defendants. |
Brian McCaffrey, Jamaica, N.Y., for appellant.
Hogan Lovells US LLP, New York, N.Y. (David Dunn, Chava Brandriss, andJonathan E. Samon of counsel), for respondents.
In an action, inter alia, pursuant to RPAPL article 15 to quiet title to real propertyand for declaratory relief, the plaintiff appeals from an order of the Supreme Court,Queens County (Dufficy, J.), dated June 20, 2013, which granted the motion of thedefendants U.S. Bank National Association, as Trustee for Bear Stearns Asset-BackedSecurities I Trust 2006-AC2, Mortgage Electronic Registration Systems, Inc., and WellsFargo Bank, National Association, pursuant to CPLR 3211 (a) to dismiss the complaintinsofar as asserted against them.
Ordered that the order is affirmed, with costs, and the matter is remitted to theSupreme Court, Queens County, for the entry of a judgment, inter alia, declaring that thesubject mortgage dated December 21, 2005, is not null and void.
The plaintiff commenced this action, inter alia, pursuant to RPAPL article 15 to quiettitle against, among others, the defendants U.S. Bank National Association, as Trusteefor Bear Stearns Asset-Backed Securities I Trust 2006-AC2, Mortgage ElectronicRegistration Systems, Inc., and Wells Fargo Bank, National Association (hereinaftercollectively the defendants), the alleged holders and former holders of the subjectmortgage, dated December 21, 2005, and for a judgment, inter alia, declaring that thesubject mortgage is null and void. The defendants moved pursuant to CPLR 3211 (a) (1)and (7) to dismiss the complaint insofar as asserted against them.
A motion pursuant to CPLR 3211 (a) (1) to dismiss based on documentary evidencemay be appropriately granted "only where the documentary evidence utterly refutesplaintiff's factual allegations, conclusively establishing a defense as a matter of law"(Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see YDRA, LLC v Mitchell,123 AD3d 1113 [2014]). On a motion pursuant to CPLR 3211 (a) (7) to dismiss forfailure to state a cause of action, the court must accept the facts alleged in the complaintas true, accord the plaintiff the benefit of every possible favorable inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory (seeGoshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Leon v Martinez,84 NY2d 83, 87-88 [1994]).
Here, the documentary evidence conclusively established the validity of the subjectmortgage and note. The allegations in the complaint failed to set forth the existence of abona fide [*2]justiciable controversy as to whether thesubject property is wrongfully encumbered, and the plaintiff is not entitled to the reliefshe seeks (see CPLR 3211 [a] [1], [7]; RPAPL 1515; Benson v Deutsche Bank Natl.Trust, Inc., 109 AD3d 495, 498 [2013]; see also Acocella v Bank of N.Y.Mellon, 127 AD3d 891 [2015] [decided herewith]). To the extent that the plaintiff, in effect, challenges thedefendants' standing to commence an action to foreclose the subject mortgage, thatcontention is misplaced, as this is not an action to foreclose a mortgage, and standing isnot an issue herein (see Acocella v Bank of N.Y. Mellon, 127 AD3d 891 [2015] [decided herewith];cf. Bank of Am., N.A. v Paulsen, 125 AD3d 909 [2015]). Accordingly, underthese circumstances, the Supreme Court properly granted the defendants' motionpursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as assertedagainst them.
Since this is, in part, a declaratory judgment action, we remit the matter to theSupreme Court, Queens County, for the entry of a judgment, inter alia, declaring that thesubject mortgage dated December 21, 2005, is not null and void (see Lanza vWagner, 11 NY2d 317, 334 [1962]).
The plaintiff's remaining contentions are without merit. Rivera, J.P., Sgroi, Malteseand LaSalle, JJ., concur.