Sobel v. Wolf
| Decision Date | 22 May 1961 |
| Citation | 216 N.Y.S.2d 132 |
| Parties | Harold SOBEL et al., Plaintiffs, v. Lucille WOLF et al., Defendants. |
| Court | New York Supreme Court |
Sirignano & Gilberg, Mt. Vernon, for plaintiffs.
Benjamin Burstein, White Plains, for defendants.
In this mortgage foreclosure action plaintiff-mortgagee moves, pursuant to Rules of Civil Practice, Rule 109, Subds. 5 and 6, to strike out and dismiss the 'Fourth' affirmative defense and 'Third' counterclaim (paragraphs 14 through 17) of the amended answer because of legal insufficiency.
By moving to strike out and dismiss for patent insufficiency, plaintiff authorizes the court to accept as true the relevant allegations of fact and the reasonable inferences that may be drawn therefrom. Therefore, plaintiff admits: (1) that defendant did not acknowledge the execution of the mortgage to any notary public; (2) that plaintiff caused Frederick N. Maltz, a notary public, to sign the acknowledgment on the back of the mortgage; (3) that said notary public did not witness the execution of the mortgage by defendant; and (4) that defendant did not at any time acknowledge the execution of said mortgage to said notary public.
The court is of the opinion that as a defense to this foreclosure action between the parties, the aforementioned facts are not legally sufficient. Even without a valid acknowledgment the mortgage may still be valid between the parties, and this fact seems to be conceded by defendant in her memorandum of law. Here, there is no question but that defendant did sign the mortgage. However, insofar as the counterclaim is concerned, a different situation is presented. Under section 329 of the Real Property Law, an owner of real property may maintain an action to have any instrument in writing relating to such real property which has been improperly recorded cancelled of record (Newpar Estates v. Barilla, 4 A.D.2d 186, 164 N.Y.S.2d 132). In this case defendant-owner (implicit and reasonably inferred from all the pleadings, although not specifically alleged in the counterclaim) in her 'Third' counterclaim seeks to expunge from the record the subject mortgage on the ground that it was improperly recorded in that she did not acknowledge her signature to the notary public Maltz. If that be so, then there is absent a valid acknowledgment, and plaintiff could not have recorded it as a 'conveyance' (Real Property Law, sections 291, 292).
Settle order on notice accordingly.
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Rosendale v. Mr. Cooper Grp.
...to have any instrument in writing relating to such real property which has been improperly recorded cancelled of record.” Sobel v. Wolf, 216 N.Y.S.2d 132, 133 (Sup. Westchester Cty. 1961). Plaintiffs have successfully sued for invalidation of defective mortgages where they have proven “a fu......
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Broadway Equity Holdings LLC v. 152 Broadway Haverstraw Ny LLC (In re Broadway Equity Holdings LLC)
...Dept. of Social Services, 111 Misc.2d 739, 741, 444 N.Y.S.2d 974 (Sup. Ct. Nassau Cty. 1980) ; Sobel v. Wolf, 1961 N.Y. Misc. LEXIS 3622, 216 N.Y.S.2d 132, 133 (Sup. Ct. West. Cty. 1961). Three consequences do in fact follow from an ineffective mortgage notarization: the strong presumption ......
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Cicerale v. Cicerale
...304; People ex rel. Oaklawn Corp. v. Donegan, 226 N.Y. 84, 123 N.E. 71; Rogers v. Pell, 154 N.Y. 518, 49 N.E. 75.) In Sobel v. Wolf, Sup., 216 N.Y.S.2d 132 the defendant had interposed a counterclaim seeking to expunge a mortgage which had been previously recorded but which had not been ack......
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Berman v. Nassau County Dept. of Social Services
...threshold issue raised by plaintiff, namely that the bond and mortgage was improperly acknowledged and thus not recordable (cf. Sobel v. Wolf, 216 N.Y.S.2d 132 ). However, as the Sobel case points out, the mortgage may still be valid as between the parties even without a valid acknowledgmen......