Dolphin v. Marocik

• Decision Date: 18 December 1995
• Docket Number: No. 1,No. 2,1,2
• Citation: 222 A.D.2d 549,635 N.Y.S.2d 84
• Parties: Michael DOLPHIN, Appellant-Respondent, v. Janos MAROCIK, et al., Defendants, Ferenc Marocik, Respondent-Appellant, Donald Jaffe, Inc., Respondent-Respondent (Action). DONALD JAFFE, INC., Respondent-Respondent, v. Janos MAROCIK, et al., Defendants, Ferenc Marocik, Respondent-Appellant, Michael Dolphin, Appellant-Respondent (Action).
• Court: New York Supreme Court — Appellate Division

Page 84

635 N.Y.S.2d 84

222 A.D.2d 549

Michael DOLPHIN, Appellant-Respondent, v. Janos MAROCIK, et al., Defendants, Ferenc Marocik, Respondent-Appellant, Donald Jaffe, Inc., Respondent-Respondent (Action No. 1).

DONALD JAFFE, INC., Respondent-Respondent, v. Janos MAROCIK, et al., Defendants, Ferenc Marocik, Respondent-Appellant, Michael Dolphin, Appellant-Respondent (Action No. 2).

Supreme Court, Appellate Division Second Department.

Dec. 18, 1995.

Abraham Hecht, Forest Hills (Warren S. Hecht, of counsel), for appellant-respondent in Action No. 1 and Action No. 2.

Dreyer and Traub, New York City (Eugene Mittelman and James Schwartzman, of counsel), for respondent-respondent in Action No. 1 and Action No. 2.

Before ROSENBLATT, J.P., and COPERTINO, FRIEDMANN and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In two actions to foreclose separate mortgages on the same property, Michael Dolphin, the plaintiff in Action No. 1 and a defendant in Action No. 2, appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Turret, J.), dated April 18, 1994, which, after a joint nonjury trial, inter alia, (1) determined that the mortgage held by Donald Jaffe, Inc., a defendant in Action No. 1 and the plaintiff in Action No. 2, was entitled to priority over his mortgage, and (2) dismissed his complaint in Action No. 1; and Ferenc Marocik, a defendant in Action No. 1 and Action No. 2, cross-appeals from the same order and judgment.

ORDERED that the cross-appeal is dismissed for failure to perfect the same in accordance with the rules of this court (22 NYCRR 670.8[c], [e]; and it is further,

ORDERED that the order and judgment is affirmed; and it is further,

ORDERED that Donald Jaffe, Inc., is awarded one bill of costs.

Michael Dolphin and Donald Jaffe, Inc. (hereinafter Jaffe), commenced separate actions to foreclose separate mortgages held by them on the same property. This appeal by Dolphin is from an order and judgment (one paper) which held that Jaffe's prior unrecorded mortgage took priority over Dolphin's subsequent, but first to be recorded, mortgage because Dolphin had actual or constructive notice of the existence of Jaffe's mortgage at the time Dolphin took his mortgage. The court also found that Dolphin's mortgage was invalid due to lack of consideration or due to inadequate consideration.

While we disagree with the trial court's conclusion that Dolphin had actual or constructive notice of the prior, unrecorded mortgage held by Jaffe at the time Dolphin took his mortgage, we find that Dolphin failed to establish that he paid valuable consideration for his mortgage (see, Hood v....