U.S. Bank Nat'l Ass'n v. Lieberman

• Decision Date: 07 August 2012
• Citation: 2012 N.Y. Slip Op. 05894,98 A.D.3d 422,950 N.Y.S.2d 127
• Parties: US BANK NATIONAL ASSOCIATION as Trustee of the Banc of America Funding 2006–A Trust, Plaintiff–Appellant, v. William LIEBERMAN, et al., Defendants, Joanne Omark Lieberman, Defendant–Respondent. [And a Third–Party Action].
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 422
950 N.Y.S.2d 127
2012 N.Y. Slip Op. 05894

US BANK NATIONAL ASSOCIATION as Trustee of the Banc of America Funding 2006–A Trust, Plaintiff–Appellant,
v.
William LIEBERMAN, et al., Defendants,
Joanne Omark Lieberman, Defendant–Respondent.
[And a Third–Party Action].

Supreme Court, Appellate Division, First Department, New York.

Aug. 7, 2012.

[950 N.Y.S.2d 128]

Fidelity National Law Group, New York (Anthony F. Prisco of counsel), for appellant.

Jones, LLP, Scarsdale (Stephen J. Jones of counsel), for respondent.

SWEENY, J.P. CATTERSON, ACOSTA, FREEDMAN, ROMÁN, JJ.

[98 A.D.3d 422]Order, Supreme Court, New York County (Ellen Gesmer, J.), entered July 8, 2011, which, to the extent appealed from, in a mortgage foreclosure action, granted defendant Johanna Omark Lieberman's (sued herein as Joanne Omark Lieberman) motion for summary judgment dismissing the complaint as against her, denied plaintiff's cross motion for summary judgment, and denied plaintiff's motion to extend the time for discovery and the submission of certain documents, unanimously affirmed, without costs.

Defendants, a husband and wife embroiled in a divorce action[98 A.D.3d 423], had purchased a residence by personally signing the contract of sale and conducting the remainder of the transaction by power of attorney. The deed vested title in both spouses, but the note and mortgage executed on their behalf named only the husband as borrower. Although the matrimonial court had directed the husband to make payments on the mortgage obligation, he defaulted, and plaintiff sought to foreclose on the property. However, because the property was held by the still married defendants as a tenancy by the entirety, and would only be subject to partition after the divorce decree became final ( see Goldman v. Goldman, 95 N.Y.2d 120, 122, 711 N.Y.S.2d 128, 733 N.E.2d 200 [2000];Freigang v. Freigang, 256 A.D.2d 539, 682 N.Y.S.2d 466 [1998] ), plaintiff sought reformation to correct the inconsistency between the deed and the mortgage to add defendant wife's name as a mortgagor.

The motion court correctly granted defendant's motion for summary judgment insofar as the affidavits and documents

[950 N.Y.S.2d 129]

she submitted in support of her motion established her prima facie entitlement to such relief. Specifically, defendant established that upon closing (1) she acquired one-half undivided interest in the property at issue, which she holds with her husband as a tenant by the entirety; (2) that she...