Sabbatini v. Galati

• Citation: 789 N.Y.S.2d 504,2005 NY Slip Op 00251,14 A.D.3d 547
• Decision Date: 18 January 2005
• Docket Number: 2004-04419.
• Parties: NICHOLAS SABBATINI, Appellant, v. BENITO GALATI et al., Respondents, et al., Defendants.
• Court: New York Supreme Court Appellate Division

14 A.D.3d 547

789 N.Y.S.2d 504

2005 NY Slip Op 00251

NICHOLAS SABBATINI, Appellant, v. BENITO GALATI et al., Respondents, et al., Defendants.

2004-04419.

Appellate Division of the Supreme Court of the State of New York, Second Department.

January 18, 2005.

In an action, inter alia, to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Hart, J.), dated April 20, 2004, which granted the motion of the defendant Elizabeth Galati, in which the defendants Benito Galati, Maria Galati, and Joseph Gallo joined, pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against them.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

In January 1994 the defendants Benito Galati and Maria Galati executed a second mortgage in favor of the plaintiff on property they owned to secure payment of a debt. The plaintiff did not record the mortgage. Several months later, the plaintiff obtained a confession of judgment from Benito Galati based on the same mortgage debt. The plaintiff subsequently filed the confession of judgment and his judgment was docketed in November 1994. However, he never attempted to execute on his judgment.

In July 1994 Benito Galati and Maria Galati executed another mortgage on the property, this one in favor of the defendant Joseph Gallo. In August 1994 the bank that held the first mortgage on the property commenced an action to foreclose its mortgage. The plaintiff was not made a party to that action. A judgment of foreclosure and sale ultimately was entered and the property was sold to Gallo at a foreclosure sale held in September 1995. Approximately five years later, Gallo conveyed the property to the defendant Elizabeth Galati, the daughter of Benito Galati and Maria Galati.

The plaintiff subsequently commenced this action, inter alia to set aside the conveyance from Gallo to Elizabeth Galati, to restore title to Benito Galati and Maria Galati, and to foreclose his mortgage, alleging that the Galatis and Gallo (collectively the respondents) engaged in a fraudulent scheme to render Benito Galati and Maria Galati judgment proof. Elizabeth Galati made a motion, in which the other respondents joined, to dismiss the complaint, inter alia, on the ground that it failed to state a cause of action in that, among other things, the plaintiff elected to proceed on the debt by filing the confession of judgment and could...