Deutsche Bank Nat'l Trust Co. v. Feliciano

• Decision Date: 17 April 2013
• Citation: 105 A.D.3d 889,2013 N.Y. Slip Op. 02531,963 N.Y.S.2d 362
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Francisco FELICIANO, et al., defendants, Sheila Ellerbe, appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 889

963 N.Y.S.2d 362

2013 N.Y. Slip Op. 02531

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,

v. Francisco FELICIANO, et al., defendants,Sheila Ellerbe, appellant.

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

April 17, 2013.

Fred Grafstein, P.C., Deer Park, N.Y. (Howard S. Grafstein of counsel), for appellant.

Donald G. Davis, New York, N.Y., for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and SYLVIA HINDS–RADIX, JJ.

In a mortgage foreclosure action, the defendant Sheila Ellerbe appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Martin, J.), entered November 18, 2011, as denied her motion for summary judgment dismissing the complaint insofar as asserted against her, and granted the plaintiff's cross motion for summary judgment dismissing certain of her defenses.

ORDERED that on the Court's own motion, the notice of appeal dated December 9, 2001, is deemed to be a notice of appeal by the defendant Sheila Ellerbe ( seeCPLR 2001; Matter of Tagliaferri v. Weiler, 1 N.Y.3d 605, 606, 775 N.Y.S.2d 753, 807 N.E.2d 864); and it is further, ORDERED that the order is affirmed insofar as appealed from, with costs.

By deed dated June 24, 1999, the defendant John Ellerbe, who is not a party to this appeal, and the defendant Sheila Ellerbe (hereinafter the appellant), as husband and wife, took possession of certain real property (hereinafter the subject property) as tenants by the entirety. By deed dated October 27, 2004, John Ellerbe unilaterally transferred “ 1/2 interest in [the subject] property” to Jalioop Corp. (hereinafter Jalioop). By deed dated July 11, 2006, the appellant and Jalioop together transferred the subject property to the defendant Francisco Feliciano, who is not a party to this appeal. On the same date, Feliciano mortgaged the subject property to Argent Mortgage Co. for the sum of $365,750, and executed an additional deed transferring a 99% interest in the property to “Sheila Ellerbe and John Ellerbe as husband and wife,” while retaining a 1% interest in the property for himself. Upon Feliciano's alleged default, the plaintiff, as assignee of the mortgage, commenced this action to foreclose the mortgage. The appellant moved for summary judgment dismissing the complaint insofar as asserted against her, contending that the tenancy by the entirety that was created in 1999 was never terminated. The Supreme Court denied her motion, and granted the plaintiff's cross motion for summary judgment dismissing certain of her defenses, all of which were dependent upon this contention by the appellant.

Contrary to the appellant's contention, where a tenancy by the entirety is created, “there is nothing in New York law that prevents one of the co-owners from mortgaging or making an effective conveyance of his or her own interest in the tenancy ... subject to the continuing rights of the other” ( V.R.W., Inc. v. Klein, 68 N.Y.2d 560, 565, 510 N.Y.S.2d 848, 503 N.E.2d 496;see 1.2.3. Holding Corp. v. Exeter Holding,...