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Decided on December 13, 2010
Supreme Court, Queens County

28701/2008
For the Plaintiff: Kleinman, Saltzman & Bolnick, P.C., by Laurence D. Kleinman, Esq., 151 North Main St., New City, New York 10956
For the Defendant Buel Penelope Manning: Hopkins Law Group, L.L.C., by Everett Hopkins, Esq., 186-17 Merrick Blvd., Springfield Gardens, New York, 11413
For the Defendant Avis Willacy: Della Mura & Ciacci, LLP, by Walter F. Ciacci, Esq., 981 Allerton Ave., Bronx, New York, 10469
Charles J. Markey, J.
Plaintiff moves, pursuant to CPLR 3212, for summary judgment to dismiss the answer of defendant Buel Penelope Manning, s/h/a Buel Penelope Manning as administratrix of the Estate of Noel George Manning.
Plaintiff commenced this action seeking foreclosure of a mortgage dated February 19, 2008, given by defendant Avis M. Willacy, as fee owner of the premises known as 216-18 135th Avenue, Laurelton, in Queens County, New York, to Countrywide Bank, FSB, to secure repayment of a note, evidencing a loan in the principal amount of $417,000.00, with interest.
Plaintiff alleges that it is the holder of the mortgage and note pursuant to an assignment, and defendant Willacy defaulted under the terms of the mortgage and note by failing to make the monthly mortgage installment payment due and owing on June 1, 2008. Plaintiff also alleges that it elected to accelerate the entire mortgage debt. Plaintiff named Manning, in her capacity as [*2]the administrator of the Estate of Noel George Manning, as a party defendant, because she had filed a
notice of pendency with respect to the subject property on May 5, 2008.[FN1]
Defendant Manning served an answer, denying certain allegations of the complaint, and asserting various affirmative defenses based upon her claim that the subject property was previously owned by the Estate of Noel George Manning, and Glenmore Maynard, a nonparty. According to defendant Manning, she is the personal representative of the Estate of Noel George Manning, and at the time of the death of her decedent, the property was subject to a mortgage, which was in arrears. Defendant Manning claims she was advised by her then attorney that she could not qualify for a suitable mortgage in her own name. She also claims she entered into an agreement with Valerie Forest, a family friend, whereby Forest would hold record title to the property and obtain a mortgage loan, which proceeds would be used to satisfy the prior mortgage and the Estate debts, and Manning would be responsible for paying the new mortgage, as well as all repairs and maintenance of the property.
Defendant Manning admits she executed a deed dated April 20, 2005, transferring title to Valerie Forest, but claims that by doing so, she never intended to sell the property to Valerie Forest. In addition, defendant Manning claims that she was fraudulently induced to transfer title to Valerie Forest based upon Forest's misrepresentations that Manning could reacquire the property at any time, and Forest would not sell the premises. Defendant Manning further claims that without her knowledge and consent, Valerie Forest transferred title to the property to defendant Willacy, who in turn, encumbered the property with the subject mortgage.
Plaintiff asserts it rejected and returned an "amended" verified answer to defendant Willacy as having been untimely served.
Plaintiff previously moved, pursuant to CPLR 3212, "to dismiss" the answer of defendant Manning. Plaintiff asserted that the affirmative defenses asserted by defendant Manning in her answer lacked merit. By order dated December 14, 2009, the motion was denied without prejudice to renewal. The Court determined that plaintiff had failed to provide it with a statement indicating whether the action fit the criteria for inclusion in the residential foreclosure program, i.e., whether the loan in foreclosure was a "subprime home loan" as defined in RPAPL 1304 or "high-cost home loan" as defined in Banking Law

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