James B. Nutter & Co. v. Doe

• Decision Date: 01 September 2021
• Docket Number: 2017-10547,Index 701953/15
• Citation: 2021 NY Slip Op 04910
• Parties: James B. Nutter and Company, appellant, v. John Doe 1, etc., et al., defendants, Susan Patterson, respondent.
• Court: New York Supreme Court

2021 NY Slip Op 04910

James B. Nutter and Company, appellant, v. John Doe 1, etc., et al., defendants, Susan Patterson, respondent.

Index No. 701953/15

Supreme Court of New York, Second Department

September 1, 2021

DelBello Donnellan Weingarten Wise & Wiederkehr, LLP White Plains, NY (Lee S. Wiederkehr, Michael J. Schwarz, and Robertson, Anschutz, Schneid, Crane & Partners PLLC[Joseph F. Battista], of counsel), for appellant.

T Austin Brown, Brooklyn, NY, for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, BETSY BARROS, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County(Marguerite A. Grays, J.), entered April 24, 2017.The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendantsJohn Doe 1 through 50 and Jane Doe 1 through 50, intending to be the unknown trustees of the Living Trust of Sarah E. Lymus, and the defendantSusan Patterson, to strike the answers of those defendants, and for an order of reference.

ORDERED that the order is affirmed insofar as appealed from, with costs.

By deed dated March 15, 2009, Sarah Lymus conveyed her interest in certain real property located in Bayside (hereinafter the subject property) to the Living Trust of Sarah E. Lymus(hereinafter the trust).Thereafter, on April 24, 2009, Lymus executed a note in favor of Somerset Investors Corp., and the note was secured by a reverse mortgage on the subject property.Somerset Investors Corp. subsequently assigned the note and the reverse mortgage to the plaintiff.Lymus died in January 2011.

In 2015, the plaintiff commenced this action to foreclose the reverse mortgage against, among others, the defendantsJohn Doe 1 through 50 and Jane Doe 1 through 50, intending to be the unknown trustees of the trust (hereinafter the trustees), and the defendantSusan Patterson, Lymus's daughter.Patterson answered the complaint and asserted the affirmative defense that the plaintiff cannot maintain this action, as Lymus had transferred her ownership interest in the subject property to the trust on March 15, 2009, when Lymus executed and delivered the deed to the subject property to a third party, and as such, Lymus did not have the authority to enter into the reverse mortgage upon which this action is based.A court-appointed guardian ad litem answered on behalf of the trustees.

The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the trustees and Patterson, to strike the trustees' and Patterson's answers, and for an order of reference.In an order entered April 24, 2017, the Supreme Court, among other things, denied those branches of the plaintiff's motion.The plaintiff appeals.

As a general rule, in an action to foreclose a reverse mortgage, a plaintiff establishes its prima facie entitlement to judgment as a matter of law by producing the reverse mortgage, the unpaid note, and evidence of the decedent's death, which constitutes a ground for acceleration of the debt under the terms of the reverse mortgage (seeOneWest Bank, FSB v Simpson, 148 A.D.3d 920, 922).Here, in support of its motion, the plaintiff submitted, inter alia, copies of the note, the reverse mortgage, the assignment of the reverse mortgage from Somerset Investors Corp. to the plaintiff, and a verified petition filed in the Surrogate's Court.These documents established the plaintiff's entitlement to accelerate Lymus's debt pursuant to the terms of the...