| Zuniga v BAC Home Loans Servicing, L.P. |
| 2017 NY Slip Op 01017 [147 AD3d 882] |
| February 8, 2017 |
| Appellate Division, Second Department |
[*1]
| Jonathan Zuniga et al., Respondents, v BAC HomeLoans Servicing, L.P., Formerly Known as Countrywide Home Loans Servicing, LP,Appellant. |
Bryan Cave, LLP, New York, NY (Suzanne M. Berger and Catherine E. Welker of counsel),for appellant.
David J. Broderick, P.C., Forest Hills, NY (Kenneth R. Berman of counsel), forrespondents.
In an action, inter alia, pursuant to RPAPL article 15 to quiet title to real property, thedefendant appeals from an order of the Supreme Court, Nassau County (Brown, J.), datedSeptember 2, 2014, which denied its motion pursuant to CPLR 3211 (a) (7) or, in the alternative,pursuant to CPLR 3212, to dismiss the complaint and for leave to enter a default judgment on itscounterclaim for sanctions.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendant's motion which was pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint, and substituting therefor a provision granting that branch of the motion to the extentof dismissing the plaintiff's sole cause of action except insofar as it is predicated on the allegationthat the subject promissory note has been satisfied, and otherwise denying that branch of themotion; as so modified, the order is affirmed, with costs to the defendant.
In this action pursuant to RPAPL article 15, the plaintiffs seek to cancel a mortgage againsttheir premises, alleging, inter alia, that the trading of the mortgage independent of the promissorynote "voided and nullified" the mortgage, that a 2010 assignment of the mortgage, independent ofthe note, was a nullity, and that the promissory note has been satisfied. The defendant moved,inter alia, pursuant to CPLR 3211 (a) (7) to dismiss the complaint.
In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court is required toaccept the facts as alleged in the complaint as true, accord the plaintiffs the benefit of everyfavorable inference, and determine only whether the facts as alleged fit within any cognizablelegal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Acocella v Wells Fargo Bank, N.A.,139 AD3d 647 [2016]; BayviewLoan Servicing, LLC v White, 134 AD3d 755 [2015]; Pirrelli v OCWEN Loan Servicing,LLC, 129 AD3d 689 [2015]; Jahan v U.S. Bank N.A., 127 AD3d 926 [2015]; Benson v Deutsche Bank Natl. Trust,Inc., 109 AD3d 495 [2013]). Although the facts pleaded are presumed to be true and areto be accorded every favorable inference, "bare legal conclusions as well as factual claims flatlycontradicted by the record are not entitled to any such consideration" (Everett v Eastchester Police Dept., 127AD3d 1131, [*2]1132 [2015]).
To maintain a cause of action to quiet title, a plaintiff must allege actual or constructivepossession of the property and the existence of a removable cloud on the property, which is anapparent title to the property, such as in a deed or other instrument, that is actually invalid orinoperative (see RPAPL 1515; Acocella v Wells Fargo Bank, N.A., 139 AD3d at649; Acocella v Bank of N.Y.Mellon, 127 AD3d 891 [2015]; Barberan v Nationpoint, 706 F Supp 2d 408, 418[US Dist Ct, SD NY 2010]).
Here, the documentary evidence conclusively established the existence of the subjectmortgage and note. The vast majority of the allegations in the complaint fail to set forth theexistence of any bona fide justiciable controversy as to whether the subject property iswrongfully encumbered (see CPLR 3211 [a] [7]; RPAPL 1515; Jahan v U.S. Bank N.A., 127 AD3d926 [2015]; Acocella v Bank ofN.Y. Mellon, 127 AD3d 891 [2015]; Benson v Deutsche Bank Natl. Trust, Inc., 109 AD3d 495[2013]; see also Ruiz v Mortgage Elec.Registration Sys., Inc., 130 AD3d 1000 [2015]). The plaintiffs' bare legal assertion thatthe "trading" of the mortgage separate and apart from the underlying note rendered the securityinterest null and void is without merit (see Ruiz v Mortgage Elec. Registration Sys., Inc.,130 AD3d at 1002). Insofar as the plaintiffs, in effect, challenge the defendant's standing tocommence an action to foreclose the subject mortgage, that contention is misplaced, as this is notan action to foreclose a mortgage, and standing is not an issue herein (see Jahan v U.S. BankN.A., 127 AD3d at 927; Acocella v Bank of N.Y. Mellon, 127 AD3d at 893).
To the extent, however, that the complaint alleges that the subject promissory note "wassatisfied," we find that this sufficiently states a cause of action under RPAPL article 15 (see e.g. Guccione v Estate of Guccione,84 AD3d 867 [2011]).
Accordingly, the Supreme Court should have granted the defendant's motion pursuant toCPLR 3211 (a) (7) to the extent of dismissing the plaintiff's sole cause of action, except insofaras it is predicated on the allegation that the subject promissory note has been satisfied.
While the defendant also moved, in the alternative, for summary judgment pursuant to CPLR3212, it failed to demonstrate the admissibility of the records relied upon by its affiant under thebusiness records exception to the hearsay rule (see CPLR 4518 [a]) and, therefore, failedto establish, prima facie, that the promissory note remained unpaid (see HSBC Mtge. Servs., Inc. v Royal,142 AD3d 952 [2016]). Accordingly, the defendant was not entitled to summary judgmentdismissing the only surviving portion of the plaintiffs' cause of action, which was predicated onthe allegation that the subject promissory note has been satisfied, regardless of the sufficiency ofthe papers submitted in opposition (seeUS Bank N.A. v Madero, 125 AD3d 757 [2015]).
That branch of the defendant's motion which was for leave to enter a default judgment on itscounterclaim for sanctions was properly denied. New York does not recognize an independentcause of action for the imposition of sanctions relating to frivolous actions (see Lewis, Brisbois, Bisgaard &Smith, LLP v Law Firm of Howard Mann, 141 AD3d 574 [2016]). Where a valid causeof action is not stated, the pleading party moving for judgment on that cause of action is notentitled to the requested relief, even on default (see LIUS Group Intl. Endwell, LLC v HFS Intl., Inc., 92 AD3d918, 920 [2012]; Church of S. IndiaMalayalam Congregation of Greater N.Y. v Bryant Installations, Inc., 85 AD3d 706, 707[2011]; Green v Dolphy Constr. Co., 187 AD2d 635, 636 [1992]). Chambers, J.P.,Maltese, Barros and Connolly, JJ., concur.