Nethaway v. Bosch

• Decision Date: 09 December 1993
• Citation: 199 A.D.2d 654,605 N.Y.S.2d 135
• Parties: Kenneth Y. NETHAWAY Sr. et al., Appellants, v. Silvana Y. BOSCH, Defendant, and Eleanor K. Isabella, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 135

605 N.Y.S.2d 135

199 A.D.2d 654

Kenneth Y. NETHAWAY Sr. et al., Appellants, v. Silvana Y. BOSCH, Defendant and Eleanor K. Isabella, Respondent.

Supreme Court, Appellate Division Third Department.

Dec. 9, 1993.

Kingsley, Towne and McLenithan, P.C. (Thomas A. Snyder, of counsel), Albany, for appellants.

Caputo, Aulisi and Skoda (Charles P. Caputo, of counsel), Gloversville, for respondent.

Before WEISS, P.J., and MIKOLL, YESAWICH, MAHONEY and CASEY, JJ.

CASEY, Justice.

Appeal from an order of the Supreme Court (Best, J.), entered August 3, 1992 in Fulton County, which granted defendant Eleanor K. Isabella's motion for summary judgment dismissing the complaint against her.

In August 1991 defendant Silvana Y. Bosch conveyed an unimproved corner lot in the City of Gloversville, Fulton County, to defendant Eleanor K. Isabella for $10,000. Shortly thereafter, plaintiffs commenced this action seeking, inter alia, a declaration that plaintiff Kenneth Y. Nethaway Sr. (hereinafter Nethaway) is the sole and rightful owner of the property. Isabella's motion for summary judgment dismissing the complaint as to her was granted, resulting in this appeal by plaintiffs.

Isabella's motion was based upon her rights under the recording act (see, Real Property Law § 290 et seq.) as an alleged bona fide purchaser for value and, therefore, she was required to establish that she purchased the property for valuable consideration without knowledge of facts that would lead a reasonably prudent purchaser to make inquiry (see, Berger v. Polizzotto, 148 A.D.2d 651, 652, 539 N.Y.S.2d 401, lv. denied 74 N.Y.2d 612, 546 N.Y.S.2d 556, 545 N.E.2d 870). It is undisputed that Isabella paid $10,000 for the lot, and we agree with Supreme Court that Nethaway's unsupported claim that the property is worth $35,000 is insufficient to create a question of fact on the issue of valuable consideration (see, Reynolds v. Springer Serv. Sta., 151 A.D.2d 466, 467, 542 N.Y.S.2d 256). We reach a contrary conclusion regarding the knowledge issue.

According to Nethaway's affidavit in opposition to Isabella's motion, plaintiffs have, since 1984, operated a garage business near the corner lot at issue and began renting the lot in 1986 in order to display used cars and trucks. Nethaway purchased the lot in 1988 and in 1990 he conveyed the property, without consideration, to Bosch, his daughter-in-law, who, according to the allegations of the verified complaint, promised to reconvey the property upon demand. The deed from Nethaway to Bosch, which was duly recorded, did not refer to any equitable interest retained by Nethaway.

" 'The general rule is that actual possession of real estate is notice to all the world of the existence of any right which the person in possession is able to establish' " (Wardell v. Older, 70 A.D.2d 1008, 1009, 418 N.Y.S.2d 196, quoting Ehrlich v. Hollingshead, 275 App.Div. 742, 87 N.Y.S.2d 682; see, Phelan v. Brady, 119 N.Y. 587, 591-592, 23 N.E. 1109). Nethaway contends that the...