| Bayview Loan Servicing, LLC v White |
| 2015 NY Slip Op 09061 [134 AD3d 755] |
| December 9, 2015 |
| Appellate Division, Second Department |
[*1]
| Bayview Loan Servicing, LLC,Appellant, v Winston White, Respondent, et al.,Defendants. |
Solomon & Siris, P.C., Garden City, N.Y. (Eric Anthony Zeni of counsel), forappellant.
In an action pursuant to RPAPL article 15 to quiet title to real property and fordeclaratory relief, the plaintiff appeals, as limited by its brief, from so much of an orderof the Supreme Court, Kings County (Martin, J.), dated June 12, 2014, as granted thosebranches of the motion of the defendant Winston White which were pursuant to CPLR3211 (a) (1) and (7) to dismiss the first and second causes of action insofar as assertedagainst him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and those branches of the motion of the defendant Winston White which were pursuantto CPLR 3211 (a) (1) and (7) to dismiss the first and second causes of action insofar asasserted against him are denied.
The real property that is the subject of this action was owned by the defendantsReginald White and Winston White as tenants-in-common, with each holding a 50%interest in the property. In a deed dated March 30, 2006, executed by Reginald, hepurported to convey the entire property to the defendant 1070 Park Place, LLC(hereinafter Park), a company of which Reginald was a principal. On or about December14, 2007, as security for a loan given by InterBay Funding, LLC (hereinafter InterBay),to Park, Park gave InterBay a mortgage purporting to encumber the entire property. Thismortgage was later assigned to the plaintiff.
In March 2008, Winston commenced an action against Reginald and Park, inter alia,to partition the subject property (hereinafter the partition action). Neither InterBay northe plaintiff was named as a party in the partition action, and no notice of pendency wasfiled with respect to the property in the partition action. Reginald and Park failed toappear in the partition action, and in a default judgment dated February 9, 2009, theSupreme Court, inter alia, declared that the conveyance of the property from Reginald toPark by deed dated December 14, 2007, was void ab initio.
In 2013, the plaintiff commenced this action against Reginald, Park, and Winston,asserting three causes of action, two of which are relevant to this appeal. In the firstcause of action, the plaintiff sought a judgment declaring that it is not bound by thejudgment in the partition action, that Park holds a 50% interest in the property, and thatthe plaintiff's mortgage encumbers Park's interest. In its second cause of action, theplaintiff alternatively sought a judgment declaring that the plaintiff is the holder of anequitable lien against Reginald's interest in the property according to the [*2]terms and conditions of its mortgage. Reginald and Parkdid not appear in this action. Winston moved pursuant to CPLR 3211 (a) (1) and (7) todismiss the complaint insofar as asserted against him. The plaintiff appeals from so muchof an order dated June 12, 2014, as granted those branches of Winston's motion whichwere pursuant to CPLR 3211 (a) (1) and (7) to dismiss the first and second causes ofaction insofar as asserted against him.
A motion to dismiss pursuant to CPLR 3211 (a) (1) may be granted if "documentaryevidence utterly refutes [the] plaintiff's factual allegations, thereby conclusivelyestablishing a defense as a matter of law" (Whitebox Concentrated Convertible Arbitrage Partners, L.P. vSuperior Well Servs., Inc., 20 NY3d 59, 63 [2012] [citation and internalquotation marks omitted]). On a motion to dismiss pursuant to CPLR 3211 (a) (7) forfailure to state a cause of action, a court "must accept as true the facts as alleged in thecomplaint and submissions in opposition to the motion, accord plaintiffs the benefit ofevery possible favorable inference and determine only whether the facts as alleged fitwithin any cognizable legal theory" (id. at 63 [internal quotation marksomitted]).
Here, the Supreme Court should have denied those branches of Winston's motionwhich were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the first and second causesof action insofar as asserted against him. While the default judgment in the partitionaction declared that the deed from Reginald to Park is void, the plaintiff is not bound bythat judgment because the plaintiff was not a party in the partition action, or in privitywith a party in the partition action (see Buechel v Bain, 97 NY2d 295, 303-305[2001]; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 485-486 [1979]).Further, when a cotenant who has a partial interest in real property executes a deed thatpurports to convey full title to the property, the deed is not entirely void; rather, the deedis effective, but only to the extent of conveying the grantor's interest in the property(see Lee v Wiegand, 28 AD2d 560, 561 [1967]). Thus, since Reginald had a 50%interest in the subject property at the time he executed the deed that purported to conveyfull title of the property to Park, this deed effectively conveyed a 50% interest in theproperty to Park. Moreover, "[a] mortgage given by one of several parties with an interestin the mortgaged property is not invalid; it gives the mortgagee security, but only up tothe interest of the mortgagor" (Real Spec Ventures, LLC v Estate of Livingston Mandel Deans,87 AD3d 1000, 1002 [2011] [internal quotation marks omitted]; see 1.2.3. Holding Corp. v ExeterHolding, Ltd., 72 AD3d 1040, 1042 [2010]; Rose v Levine, 107 AD3d 967, 971 [2013]). Thus, themortgage given by Park to InterBay and later assigned to the plaintiff encumbers Park's50% interest in the property. Accordingly, the documentary evidence does not utterlyrefute the plaintiff's factual allegations with respect to the first cause of action, and thefirst cause of action sufficiently states a cause of action for a judgment declaring that theplaintiff is not bound by the judgment in the partition action, that Park holds a 50%interest in the property, and that the plaintiff's mortgage encumbers Park's interest. Thedocumentary evidence also does not utterly refute the plaintiff's factual allegationsregarding the second cause of action, and the second cause of action sufficiently states acause of action for a judgment declaring that the plaintiff is the holder of an equitablelien against Reginald's interest in the property according to the terms and conditions ofits mortgage (see M & BJoint Venture, Inc. v Laurus Master Fund, Ltd., 12 NY3d 798, 800 [2009]; Fremont Inv. & Loan vDelsol, 65 AD3d 1013, 1014 [2009]). Rivera, J.P., Dickerson, Cohen andMaltese, JJ., concur.