Burger v. Singh
| Decision Date | 25 April 2006 |
| Docket Number | 2004-06171. |
| Parties | ARLENE BURGER, Appellant, v. FRANK SINGH et al., Defendants, and S&C INVESTORS, LLC, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the amended order and judgment is modified, on the law, by (1) deleting the provision thereof granting that branch of the cross motion of the defendant S&C Investors, LLC, which was for summary judgment dismissing the fourth cause of action insofar as asserted against it and substituting therefor a provision denying that branch of the cross motion, and (2) deleting the provision thereof imposing a lien upon the subject property in favor of the defendant S&C Investors, LLC, in the sum of $33,386.49; as so modified, the amended order and judgment is affirmed insofar as appealed from, without costs or disbursements, the fourth cause of action is reinstated as against the defendant S&C Investors, LLC, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.
In the fall of 1999 several individuals participated in a scheme to fraudulently acquire title to a house in Brooklyn owned by the plaintiff, Arlene Burger. At a closing conducted on November 12, 1999, an imposter posing as the plaintiff executed a deed conveying the premises to the defendant Marine Funding, Inc. Marine Funding's purchase of the premises was financed by a mortgage loan from the defendant, S&C Investors, LLC (hereinafter S&C). After learning of the fraudulent conveyance, the plaintiff commenced this action against several parties including Marine Funding and its president, the mortgagee, S&C, the notary public who acknowledged the imposter's fraudulent signature at the closing, and the abstract company that performed the title search. The first cause of action sought a determination of claims to the subject property, vacatur of the forged deed, and vacatur of S&C's mortgage. The plaintiff additionally asserted causes of action, inter alia, to recover damages for trespass, negligence, and negligent infliction of emotional distress.
The plaintiff subsequently moved for partial summary judgment on her first, second, and third causes of action, and S&C cross-moved, inter alia, for summary judgment dismissing the fourth cause of action to recover damages for trespass, the tenth cause of action to recover damages for negligence, and the eleventh cause of action to recover damages for negligent infliction of emotional distress. In support of its cross motion, S&C relied upon the affidavit of one of its principals, who averred that he had had no knowledge of the scheme to defraud the plaintiff, and that he had relied upon the title closer and the notary public to verify the identity of the person who appeared at the closing and identified herself as the seller. The Supreme Court granted the plaintiff's motion for partial summary judgment on her first cause of action based upon undisputed evidence that the deed conveying the premises had...
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