Lucas v. J&W Realty & Constr. Mgmt., Inc.
| Decision Date | 11 July 2012 |
| Parties | Robert G. LUCAS, etc., appellant, v. J & W REALTY AND CONSTRUCTION MANAGEMENT, INC., et al., defendants, Dwinell Bedard, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
McMillan, Constabile, Maker & Perone, LLP, Larchmont, N.Y. (William Maker, Jr., of counsel), for appellant.
DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Eric J. Mandell of counsel), for respondents.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), dated June 28, 2011, which denied its motion for summary judgment dismissing the first affirmative defense of the defendants Dwinell Bedard and Golden First Mortgage Corp., and determining that its lien on the subject real property was superior to any interest claimed by the defendants Dwinell Bedard and Golden First Mortgage Corp.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment dismissing the first affirmative defense of the defendants Dwinell Bedard and Golden First Mortgage Corp., and determining that its lien on the subject real property was superior to any interest claimed by the defendants Dwinell Bedard and Golden First Mortgage Corp., is granted.
By deed dated January 16, 2009, and recorded on January 30, 2009, the defendant J & W Realty and Construction Management, Inc. (hereinafter J & W), acquired title to the subject property from a nonparty entity, PM0 1 B1, LLC. On that same date, the plaintiff acquired a mortgage from J & W encumbering the subject property, and recorded his mortgage interest on January 23, 2009. Subsequently, the plaintiff commenced the instant action to foreclose on his mortgage.
As their first affirmative defense, the defendants Dwinell Bedard (hereinafter Bedard) and Golden First Mortgage Corp. (hereinafter Golden) alleged that they each held a prior interest in the subject property which was superior to the plaintiff's January 16, 2009, mortgage interest. In support of this affirmative defense, they offered a deed dated October 16, 2008, several months before the plaintiff acquired his mortgage, purporting to convey title to the property from J & W to Bedard, as well as a contemporaneous mortgage document in which Bedard purportedly gave Golden a mortgage on the property. Although Bedard and Golden (hereinafter together the respondents) did not record their respective ownership and mortgage interests until after J & W and the plaintiff had recorded their respective ownership and mortgage interests arising from the January 16, 2009, transactions, there was evidence that Bedard was in actual possession of the property when the plaintiff acquired his mortgage interest on January 16, 2009.
However, the record contains two additional deeds with respect to the subject property which establish that J & W did not have title to the subject property to convey to Bedard on October 16, 2008, and Bedard did not otherwise acquire valid title to the subject property. Therefore, since Bedard did not acquire valid title to the subject property on October 16, 2008, he could not give Golden a valid mortgage interest in the property on that date.
“The recording of a transaction involving real property provides potential subsequent purchasers with notice of ‘previous conveyances and encumbrances that might affect their interests' ” ( Stracham v. Bresnick, 76 A.D.3d 1009, 1010, 908 N.Y.S.2d 95, quoting Andy Assoc. v. Bankers Trust Co., 49 N.Y.2d 13, 20, 424 N.Y.S.2d 139, 399 N.E.2d 1160;seeReal Property Law § 291). “[W]here a purchaser has knowledge of any fact, sufficient to put him on inquiry as to the existence of...
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