Myers v. Meyers
| Decision Date | 08 October 2014 |
| Docket Number | 2012-09434, Index No. 9948/11. |
| Citation | 2014 N.Y. Slip Op. 06805,993 N.Y.S.2d 729,121 A.D.3d 762 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Marie MYERS, appellant, v. Clay F. MEYERS, Jr., et al., respondents. |
Thomas Torto, New York, N.Y. (Jeremy M. Weg and Jason R. Levine of counsel), for appellant.
Del Bello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Bradley D. Wank and Michael J. Schwartz of counsel), for respondents Mortgage Electronic Registrations Systems, Inc. (MERS), and Real Estate Mortgage Network, Inc.
PETER B. SKELOS, J.P., RUTH C. BALKIN, L. PRISCILLA HALL and JOSEPH J. MALTESE, JJ.
In an action pursuant to RPAPL article 15 to determine claims to certain real property, the plaintiff appeals from an order of the Supreme Court, Queens County (Golia, J.), entered July 12, 2012, which denied her motion for summary judgment on the complaint and granted the cross motion of the defendants Mortgage Electronic Registrations Systems, Inc. (MERS), and Real Estate Mortgage Network, Inc., for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed, with costs.
The plaintiff married her late husband (hereinafter the deceased) in 1947 and the couple had nine children, including the defendant Clay F. Myers, Jr., sued herein as Clay F. Meyers, Jr. (hereinafter Myers). In 1970, the deceased acquired title to the subject real property located in Jamaica, Queens (hereinafter the premises). Pursuant to a deed dated November 6, 1970, and recorded on November 24, 1970, the deceased conveyed title to the premises to himself and Myers as tenants in common. The instant complaint alleges that the deceased died intestate on April 7, 1984, and was survived by the plaintiff and their nine children, including Myers.
In June 2007, Myers executed a note in favor of the defendant Real Estate Mortgage Network, Inc. (hereinafter Mortgage Network), evidencing a loan in the amount of $219,000. The note was secured by a mortgage on the entire premises. Myers delivered the note and mortgage to the defendant Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Mortgage Network. The mortgage was duly recorded on July 12, 2007.
In November 2007, the plaintiff commenced an action against Myers, MERS, and Mortgage Network seeking a declaration that the mortgage was void (hereinafter the 2007 action). In the 2007 action, the plaintiff alleged that Myers did not have an ownership interest in the property and therefore lacked the capacity and authority to execute the mortgage. Thus, the plaintiff contended, the mortgage was void ab initio. However, in the 2007 action, the plaintiff did not allege that title to the deceased's undivided one-half interest in the premises vested automatically in her and their children upon the deceased's death. MERS and Mortgage Network (hereinafter together the MERS defendants) moved for summary judgment dismissing the complaint in the 2007 action insofar as asserted against them, and Myers separately moved for summary judgment dismissing that complaint insofar as asserted against him. In an order entered July 27, 2010, the Supreme Court granted both motions and directed dismissal of the complaint in its entirety. The court found that the MERS defendants had established, inter alia, that the mortgage loan “was extended to the record owner” of the premises for valuable consideration, without notice of the plaintiff's claimed interest. With respect to Myers, the court found, inter alia, that the plaintiff “ha[d] not pleaded a case against him ... and seeks no relief from him.” To the contrary, the court observed, the plaintiff sought only a declaratory judgment that the mortgage was void ab initio. Subsequently, in an order dated January 10, 2011, the court granted the plaintiff's motion for leave to reargue and, upon reargument, adhered to its original determination. The plaintiff did not appeal from either of the orders in the 2007 action.
On or about April 22, 2011, the plaintiff commenced the instant action against Myers and the MERS defendants, in which she specifically alleged, inter alia, that she was married to the decedent when he died intestate in 1984 and, thus, title to his undivided one-half interest in the premises vested automatically in her and their children at the time of his death. In the instant action, the plaintiff sought a judgment pursuant to RPAPL 1501 declaring that she and the nine children, including Myers, were title owners in fee simple absolute of an undivided one-half interest in the premises, that she and the children owned this one-half interest free and clear of the mortgage, and that the mortgage encumbered only the one-half interest in the premises owned by Myers. Thereafter, the plaintiff moved for summary judgment on the complaint. The MERS defendants opposed the motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against them on the ground, inter alia, that the action against them was barred by the doctrine of res judicata. While Myers opposed the plaintiff's motion for summary judgment, he did not cross-move to dismiss the complaint insofar as asserted against him.
In the order appealed from, the Supreme Court denied the plaintiff's motion for summary judgment and granted the MERS defendants' cross motion for summary judgment dismissing the complaint insofar as asserted against them. The court concluded that the causes of action against the MERS defendants in the instant action were barred by the doctrine of res judicata.
Contrary to the plaintiff's contention, the Supreme Court properly...
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