| JPMorgan Chase Bank, N.A. v Roseman |
| 2016 NY Slip Op 02332 [137 AD3d 1222] |
| March 30, 2016 |
| Appellate Division, Second Department |
[*1]
| JPMorgan Chase Bank, N.A.,Respondent, v Patrick Roseman et al., Appellants, et al.,Defendant. |
Law Offices of Jaime Lathrop, P.C., Brooklyn, NY, for appellants.
Fidelity National Law Group, New York, NY (Geraldine A. Cheverko and FrancisLongobardi of counsel), and Buckley Madole, P.C., New York, NY, for respondent (onebrief filed).
In an action, inter alia, for a judgment declaring that the plaintiff holds a mortgage onthe subject property, the defendants Patrick Roseman and Sally Roseman appeal from anorder of the Supreme Court, Queens County (Gavrin, J.), entered January 29, 2015,which denied their motion pursuant to CPLR 3211 (a) to dismiss the complaint insofar asasserted against them and to cancel the notice of pendency filed against the subjectproperty.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the motion of the defendants Patrick Roseman and Sally Rosemanwhich was pursuant to CPLR 3211 (a) (7) to dismiss the fourth cause of action insofar asasserted against them, and substituting therefor a provision granting that branch of themotion; as so modified, the order is affirmed, without costs or disbursements.
On July 14, 2008, the defendants Patrick Roseman and Sally Roseman (hereinaftertogether the borrowers) borrowed $389,557 from Ideal Mortgage Bankers, Ltd., andexecuted a purchase-money mortgage on real property in Rosedale, Queens. Part of themortgage proceeds was used to pay off two preexisting mortgages on the property.
The borrowers' mortgage was not recorded. On or about May 6, 2014, the plaintiffcommenced this action against, among others, the borrowers. The plaintiff alleged that itwas the current holder of the mortgage and the original note, and it annexed copies of themortgage and note to the complaint. The note contained an undated endorsement to theplaintiff. The mortgage was labeled a "certified true copy" and was acknowledged by anotary public qualified in Kings County. The complaint asserted causes of action (1) fora judgment declaring that the plaintiff holds the mortgage on the property; (2) for ajudgment directing the Office of the City Register of the City of New York to record themortgage with the same force and effect as if the original had been recorded on July 14,2008; (3) for a judgment declaring that the plaintiff has an equitable lien against theproperty; (4) for a judgment declaring that the plaintiff has a constructive trust againstthe property; and (5) sounding in equitable subrogation.
[*2] The borrowers moved pursuant to CPLR 3211 (a) todismiss the complaint insofar as asserted against them and to cancel the notice ofpendency filed against the property, alleging, inter alia, that the plaintiff lacked standingto commence the action. In the order appealed from, the Supreme Court denied themotion in its entirety. We modify.
" 'Either a written assignment of the underlying note or the physical deliveryof the note prior to the commencement of the foreclosure action is sufficient to transferthe obligation, and the mortgage passes with the debt as an inseparableincident' " (YMJMeserole, LLC v 98 Meserole St., LLC, 133 AD3d 848, 849 [2015], quoting U.S. Bank, N.A. v Collymore,68 AD3d 752, 754 [2009]). In this case, the face of the note indicated that it wasendorsed to the plaintiff. Although the endorsement was undated, a copy of the note wasannexed to the complaint, establishing prima facie that the plaintiff had standing (see Nationstar Mtge., LLC vCatizone, 127 AD3d 1151 [2015]; U.S. Bank N.A. v Guy, 125 AD3d 845, 847 [2015]).
Moreover, the complaint asserts that the mortgage was "duly executed anddelivered," and the certified copy of the mortgage annexed to the complaint was dulyacknowledged by an identified notary public. Thus, the mortgage appears valid on itsface (see JP Morgan ChaseBank, N.A. v Mbanefo, 123 AD3d 669, 671 [2014]).
Further, the complaint adequately pleads causes of action seeking a judgmentdeclaring an equitable lien and equitable subrogation (see M & B Joint Venture, Inc.v Laurus Master Fund, Ltd., 12 NY3d 798, 800 [2009]; Bank of N.Y. v Penalver, 125AD3d 795 [2015]; ArborCommercial Mtge., LLC v Associates at the Palm, LLC, 95 AD3d 1147[2012]).
However, the complaint fails to state a cause of action for the imposition of aconstructive trust. The elements of a cause of action to impose a constructive trust are (1)a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance upon thepromise, and (4) unjust enrichment (see Sharp v Kosmalski, 40 NY2d 119, 121[1976]). In this case, the plaintiff does not allege a fiduciary relationship between itselfand the borrowers, and on this record, there is no basis alleged from which one couldinfer that there is a fiduciary relationship (see Chester Color Separations v TrefoilCapital Corp., 222 AD2d 276 [1995]). Therefore, that branch of the borrowers'motion which was pursuant to CPLR 3211 (a) (7) to dismiss the plaintiff's fourth causeof action seeking a constructive trust should have been granted.
The borrowers' remaining contentions are without merit or need not be addressed atthis juncture. Leventhal, J.P., Sgroi, Hinds-Radix and Maltese, JJ., concur.