Datena v. Bank

• Decision Date: 04 May 2010
• Citation: 73 A.D.3d 683,2010 N.Y. Slip Op. 03863,901 N.Y.S.2d 290
• Parties: Sandra DATENA, appellant,v.JP MORGAN CHASE BANK, respondent, et al., defendant.
• Court: New York Supreme Court — Appellate Division

73 A.D.3d 683

901 N.Y.S.2d 290

2010 N.Y. Slip Op. 03863

Sandra DATENA, appellant,

v.JP MORGAN CHASE BANK, respondent, et al., defendant.

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

May 4, 2010.

Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great Neck, N.Y. (John M. Brickman of counsel), for appellant.Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, N.Y. (Jacqueline M. Della Chiesa of counsel), for respondent.A. GAIL PRUDENTI, P.J., STEVEN W. FISHER, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

In an action, inter alia, pursuant to RPAPL article 15 to compel the determination of claims to real property, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered April 27, 2009, which granted the motion of the defendant JP Morgan Chase Bank pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

According to a deed filed in the Nassau County Clerk's office on August 1, 2003, the plaintiff and her daughter, the defendant Reba Singh, took title to real property located in Baldwin (hereinafter the subject property) as joint tenants on July 21, 2003. Thereafter, when the defendant JP Morgan Chase Bank (hereinafter the Bank) docketed a money judgment obtained against Singh with the Nassau County Clerk's office, that judgment became a lien on the property. The plaintiff commenced this action against the Bank and Singh seeking, among other relief, to remove the judgment lien on the property on the ground that Singh was not a joint owner of the real property. According to the plaintiff, Singh was listed as a joint owner because of the plaintiff's desire “to make Singh a co-owner solely as a testamentary substitute.” After the plaintiff commenced this action, the Bank moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7).

A complaint may be dismissed if “documentary evidence ... ‘resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim’ ” ( Sullivan v. State of New York, 34 A.D.3d 443, 445, 824 N.Y.S.2d 135, quoting Nevin v. Laclede Professional Prods., 273 A.D.2d 453, 453, 711 N.Y.S.2d 735; CPLR 3211[a][1] ). On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint, the allegations in the complaint are accepted as true and accorded the benefit of every possible favorable inference to determine if the facts, as alleged, fit within any cognizable legal theory ( see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Whether the plaintiff can prove her allegations is not part of the calculus in this determination ( see EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26). Dismissal may result if the movant satisfies its “burden of submitting documentary evidence that ‘resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim’ ” ( Sullivan v. State of New York, 34 A.D.3d at 445, 824 N.Y.S.2d 135, quoting Nevin v. Laclede Professional Prods., 273 A.D.2d at 453, 711 N.Y.S.2d 735).

The deed recorded by the plaintiff clearly and unambiguously states that she took title to the subject property as a joint tenant with Singh. Therefore, the wording in the...