| Acocella v Wells Fargo Bank, N.A. |
| 2016 NY Slip Op 03458 [139 AD3d 647] |
| May 4, 2016 |
| Appellate Division, Second Department |
[*1](May 4, 2016)
| Frank A. Acocella et al., Appellants, v WellsFargo Bank, N.A., Defendant, and Bank of New York Mellon as Trustee for CSMCTrust 2011-11 et al., Respondents. |
Murphy Law Group, Purchase, NY (Sheila A. Murphy of counsel), forappellants.
Parker Ibrahim & Berg LLC, New York, NY (Anthony W. Vaughn, Jr., and R.Christopher Owens of counsel), for respondents.
In an action pursuant to RPAPL article 15 to quiet title to real property, the plaintiffsappeal from an order of the Supreme Court, Westchester County (Smith, J.), datedFebruary 24, 2014, which granted the motion of the defendants Bank of New YorkMellon as Trustee for CSMC Trust 2011-11 and Green Tree Servicing, LLC, pursuant toCPLR 3211 (a) to dismiss the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs; and it is further,
Ordered that on the Court's own motion, counsel for the respective parties aredirected to show cause why an order should or should not be made and entered imposingsuch sanctions and costs, if any, against the plaintiffs and/or their counsel pursuant to 22NYCRR 130-1.1 (c) as this Court may deem appropriate, by filing an original and fourcopies of an affirmation or affidavit on that issue in the office of the Clerk of this Courtand serving one copy of the same on each other on or before June 3, 2016; and it isfurther,
Ordered that the Clerk of the Court, or her designee, is directed to serve counsel forthe respective parties with a copy of this decision and order by regular mail.
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 wasimproper. According to the complaint, on March 16, 2007, the plaintiffs executed a notein the sum of $650,000 in favor of the defendant Wells Fargo Bank, N.A. (hereinafterWells Fargo). The note was secured by a mortgage against the plaintiffs' real property inHarrison. The mortgage was recorded. In 2011, Wells Fargo assigned the mortgage to thedefendant Bank of New York Mellon as Trustee for CSMC Trust 2011-11 (hereinafterBNYM). The note was subsequently endorsed by Wells Fargo without recourse in blank.BNYM possessed the note, and the defendant Green Tree Servicing, LLC (hereinafterGreen Tree), was the servicer of the mortgage. The complaint asserted that the mortgageloan was current and that there was no pending action to foreclose the mortgage. Thecomplaint [*2]demanded that the defendants and everyperson claiming under them 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 property free and clear of the note and mortgage, that the mortgagebe discharged and cancelled of record, and that the plaintiffs recover all costs paid to thedefendants after the 2011 assignment of the mortgage.
BNYM and Green Tree moved pursuant to CPLR 3211 (a) to dismiss the complaintinsofar as asserted against them on the grounds that the plaintiffs' claims were notjusticiable, and that even if they were justiciable, there was no basis in law or fact for therelief requested. The Supreme Court granted the motion, and the plaintiffs appeal.
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 only whether the facts as alleged fitwithin any 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 orconstructive possession of the property and the existence of a removable cloud on theproperty, which is an apparent title, such as in a deed or other instrument, that is actuallyinvalid or inoperative (see RPAPL 1515; Acocella v Bank of N.Y. Mellon, 127 AD3d 891 [2015];Barberan v Nationpoint, 706 F Supp 2d 408 [SD NY 2010]). Here, accepting thefactual allegations in the complaint as true, and according the plaintiffs the benefit ofevery favorable inference, the allegations in the complaint failed to set forth the existenceof a bona fide justiciable controversy as to whether title to the subject property iswrongfully encumbered (seeJahan v U.S. Bank N.A., 127 AD3d 926 [2015]; Acocella v Bank of N.Y.Mellon, 127 AD3d 891 [2015]; Benson v Deutsche Bank Natl. Trust, Inc., 109 AD3d 495,498 [2013]). It is undisputed that the plaintiffs are not in default on the mortgage loan,and there is no pending foreclosure action in existence. Moreover, the plaintiffs did notallege that any entity other than BNYM is claiming an interest in the mortgage or anentitlement to payments on the mortgage debt. Therefore, the Supreme Court properlydetermined that there is no justiciable controversy (see Jahan v U.S. Bank N.A., 127 AD3d 926 [2015];Acocella v Bank of N.Y. Mellon, 127 AD3d at 892). The plaintiffs' remainingcontentions are without merit.
Accordingly, the Supreme Court properly granted the motion of BNYM and GreenTree pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted againstthem.
We note that the plaintiffs continued to prosecute the instant appeal after this Court,by decision and order dated April 15, 2015, rejected identical claims in a separate actioncommenced by them (seeAcocella v Bank of N.Y. Mellon, 127 AD3d 891 [2015]). The conduct of theplaintiffs and their attorney in pursuing the instant appeal appears to be completelywithout merit in law or fact and unsupported by a reasonable argument for an extension,modification, or reversal of existing law, or undertaken primarily to delay or prolong theresolution of litigation or to harass or maliciously injure another (see 22 NYCRR130-1.1 [c]; Palmieri vThomas, 29 AD3d 658, 659 [2006]; Weinstock v Weinstock, 253 AD2d873, 874 [1998]). Accordingly, we direct counsel for the parties to submit affirmations oraffidavits on the issue of the imposition of sanctions and/or costs against the plaintiffsand/or their counsel pursuant to 22 NYCRR 130-1.1 (c). Rivera, J.P., Sgroi, Miller andHinds-Radix, JJ., concur.