Beltway Capital, LLC v. Soleil

• Decision Date: 06 March 2013
• Citation: 961 N.Y.S.2d 225,2013 N.Y. Slip Op. 01366,104 A.D.3d 628
• Parties: BELTWAY CAPITAL, LLC, appellant, v. Andre SOLEIL, also known as Andre S. Soleil, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 628
961 N.Y.S.2d 225
2013 N.Y. Slip Op. 01366

BELTWAY CAPITAL, LLC, appellant,
v.
Andre SOLEIL, also known as Andre S. Soleil, et al., respondents, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

March 6, 2013.

[961 N.Y.S.2d 226]

Stein Farkas & Schwartz, New York, N.Y. (Esther Schwartz and Jeffrey M. Schwartz of counsel), for appellant.

André Soleil, Brooklyn, N.Y., respondent pro se.

Edward C. Kesselman, New York, N.Y., for respondent Deborah Hughes.

Fidelity National Law Group, New York, N.Y. (Donald G. Davis of counsel), for respondent Sperry Associates Federal Credit Union.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and LEONARD B. AUSTIN, JJ.

[104 A.D.3d 628]In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated January 7, 2011, as (a) denied its motion to vacate an order of the same court dated July 18, 2008, which discharged a mortgage held by the plaintiff on the subject property, and to reinstate the mortgage as a lien against the property, (b) granted the motion of the defendant [104 A.D.3d 629]Deborah Hughes pursuant to CPLR 6514 to cancel the notice of pendency filed on December 8, 2009, and (c) granted that branch of the cross motion of the defendant Andre Soleil which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, the plaintiff's motion to vacate the order dated July 18, 2008, and to reinstate its mortgage as a lien against the subject property is granted, the motion of the defendant Deborah Hughes pursuant to CPLR 6514 to cancel the notice of pendency is denied, and that branch of the cross motion of the defendant Andre Soleil which was pursuant to CPLR 3211(a)(7) to dismiss the complaint is denied.

On June 18, 2007, while certain real property was owned by the defendant Andre Soleil, nonparty Asset Management Holdings, LLC (hereinafter Asset), commenced this action to foreclose upon a mortgage it held on the property in the principal sum of $625,000 (hereinafter the Soleil mortgage), and filed a notice of pendency. Soleil did not appear and the Supreme Court, in an order dated December 19, 2007, granted Asset's motion for an order of reference.

Thereafter, on June 1, 2008, Soleil moved to dismiss the complaint and cancel

[961 N.Y.S.2d 227]

the notice of pendency “for cause of payment.” Soleil swore, in an accompanying affidavit, that Asset had “no present interest in the subject property” and that the “mortgage lien was paid, and [Asset's] mortgage interest transferred to a third-party.” Asset did not respond to Soleil's motion. In an order dated July 18, 2008 (hereinafter the July 2008 order), the Supreme Court, upon Asset's “non-appearance/non-opposition,” granted Soleil's motion, directed that the foreclosure action be “dismissed for cause of payment,” canceled the notice of pendency, and “canceled and discharged” the Soleil mortgage.

The July 2008 order, discharging the Soleil mortgage, was filed and recorded on August 5, 2008. Soon thereafter, Soleil sold the property for $248,000 to the defendant Deborah Hughes, who recorded her deed on October 14, 2008. Hughes obtained a mortgage from HB Baron in the sum of $135,000, which was recorded on February 5, 2009. On May 7, 2009, Hughes transferred title of the subject property to herself and her husband, the defendant Nicholas Haven. At that time, the HB Baron...