Simek v. Cashin

• Decision Date: 11 March 2002
• Citation: Simek v. Cashin, 292 AD2d 439, 738 N.Y.S.2d 393 (N.Y. App. Div. 2002)
• Parties: SUSAN SIMEK, Appellant,<BR>v.<BR>JOAN M. CASHIN, Respondent.
• Court: New York Supreme Court — Appellate Division

292 A.D.2d 439

738 N.Y.S.2d 393

SUSAN SIMEK, Appellant,

v.JOAN M. CASHIN, Respondent.

Decided March 11, 2002.

S. Miller, J.P., Schmidt, Crane and Cozier, JJ., concur.

Ordered that the order is affirmed, with costs.

The decedent, Joan Helen Palmer, executed a deed dated January 14, 1994(hereinafter the January 1994 deed), conveying certain real property underlying structures referred to as Buildings A, B, and D to the defendant.The decedent also executed a deed dated November 1, 1994(hereinafter the November 1994 deed), which the parties agree intended to convey real property underlying Buildings C, E, F, and G, and a restaurant to the plaintiff.The plaintiff executed a note and mortgage in favor of the decedent in the principal sum of $450,000 for the November 1994 deed.The November 1994 deed contained a provision in which the decedent represented that the property was unencumbered.

Thereafter, the defendant executed a deed dated May 11, 1995, transferring the title to Buildings A, B, and D to the plaintiff.That same day, the plaintiff executed a note and mortgage in favor of the defendant in the principal sum of $430,000 in connection with this conveyance.

In August 1997the defendant commenced a foreclosure action against the plaintiff following the plaintiff's default in paying the 1995 note and mortgage.During the foreclosure action, the defendant obtained a survey to establish the property line between Buildings A, B, and D and Buildings C, E, F, and G.

The survey revealed, inter alia, that the real property described in the January 1994 deed also included the land underlying Building G, and conversely, the real property described in the November 1994 deed did not contain the land underlying Building G.The foreclosure action was settled by stipulation dated October 15, 1998, whereby the parties agreed, inter alia, that the plaintiff had title to the land underlying Building G and that the plaintiff would execute a deed conveying Buildings A, B, and D back to the defendant.Thereafter, the plaintiff executed a deed in lieu of foreclosure, conveying Buildings A, B, and D to the defendant.

In July 1999the plaintiff commenced this action against the decedent seeking to reform the 1994 note and mortgage executed in favor of the decedent on the ground of mutual mistake, and to recover damages for unjust enrichment and breach of warranty.The plaintiff then amended the complaint, naming the defendant as executrix of the estate.Subsequently, the...