Preview:

Supreme Court, Onondaga County, January 7, 2010
APPEARANCES OF COUNSEL
Phillips Lytle, LLP (Steven E. Laprade of counsel), for U.S. Bank National Association, defendant. Menter, Rudin & Trivelpiece, P.C. (James H. McGowan of counsel), for plaintiffs.
{**28 Misc 3d at 991} OPINION OF THE COURT
Anthony J. Paris, J.
Plaintiffs commenced this foreclosure action on or about February 15, 2007 by the filing of a notice of pendency and summons and complaint. On or about March 26, 2007, plaintiffs filed an amended summons and amended complaint. On November 27, 2007, this court executed a judgment of foreclosure and sale on behalf of the plaintiffs relative to the premises located at 3610 West Seneca Turnpike, Syracuse, New York. Thereafter, by order to show [*2]cause dated January 24, 2008, and filed on behalf of defendant U.S. Bank National Association (hereinafter US
Bank),[FN*] the judgment of foreclosure and sale was stayed. Said judgment was ultimately vacated by order of this court dated June 5, 2008 and defendant US Bank was allowed to submit an answer to the plaintiffs' amended complaint. That answer, dated July 25, 2008, contained two counterclaims. The first sought priority for the US Bank mortgage based on the plaintiffs' notice of that mortgage, and the second sought{**28 Misc 3d at 992} priority for the US Bank mortgage based on the doctrine of equitable subrogation.
US Bank, as assignee of the Mortgage Lenders mortgage, has brought on this motion pursuant to CPLR 3212 seeking summary judgment dismissing plaintiffs' amended complaint on the basis of its counterclaims, and a declaration that the Mortgage Lenders/US Bank mortgage is superior to and has priority over that of the plaintiffs. Plaintiffs, Larry Gerow and Shirley Montana, oppose defendant's motion for summary judgment and cross-move seeking partial summary judgment dismissing defendant's first counterclaim with respect to the issue of actual or constructive notice.
Facts
Defendants Paul J. Sinay and Linda D. Sinay executed a mortgage in favor of Mortgage Lenders Network USA dated October 31, 2003, and recorded with the Onondaga County Clerk's Office on November 13, 2003 in liber 13731 of mortgages at page 0187. This instrument granted Mortgage Lenders a mortgage interest on real property owned by defendants Sinay located at 3610 West Seneca Turnpike, Syracuse, New York. The mortgage was given as security for the repayment of a promissory note dated October 31, 2003 in the principal amount of $168,750.
Defendants Sinay executed a mortgage in favor of the plaintiffs Larry Gerow and Shirley Montana dated November 5, 2003, and recorded with the Onondaga County Clerk's Office on November 12, 2003 in liber 13729 of mortgages at page 83. This mortgage was given as security for the repayment of a promissory note dated November 5, 2003, in the principal amount of $149,919.58.
There is no dispute that plaintiffs Gerow and Montana secured their mortgage lien on the property after that of defendant's assignor, Mortgage Lenders, but that plaintiffs recorded their mortgage first. Defendant US Bank seeks judgment declaring that its mortgage has first priority as a matter of law because plaintiffs were not bona fide subsequent good faith lenders without notice, and therefore are not entitled to the protections of Real Property Law

Download 2010_20237.pdf

New York Law