Rusin v Grasso

Rusin v Grasso 2007 NY Slip Op 03972 [40 AD3d 284] May 8, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 11, 2007

Carolyn Rusin, Appellant,
v
Natale J. Grasso, Respondent, and April Grasso et al., Respondents.

—[*1] Scheichet & Davis, P.C., New York (Steven E. Weiss of counsel), for appellant.

Sperber Denenberg & Kahan, P.C., New York (Jacqueline Handel-Harbour of counsel), for respondents.

Order (denominated judgment), Supreme Court, New York County (Carol E. Huff, J.), entered April 19, 2006, which denied petitioner's application pursuant to RPAPL 1921 to cancel and discharge a mortgage, unanimously affirmed, without costs.

It appears that the subject mortgage was given to petitioner by respondent Natale J. Grasso in June 1990 and assigned by him to his corespondents in September 1998, and that petitioner gave respondent a loan in November 1998 on which she recovered a judgment in August 2004. In the latter matter, petitioner sought to offset her recovery against the amount due under the mortgage, but the court declined to do so, stating that there was no evidence showing any relationship between the two transactions, and that the circumstances surrounding the mortgage were "anything but clear" (see Rusin v Grasso, 24 AD3d 156, 157 [2005]). Petitioner then instituted this proceeding seeking, in effect, the same offset. While she correctly argues that any claim for an offset she had prior to assignment of the mortgage to the corespondents can be asserted against the corespondents (see TPZ Corp. v Dabbs, 25 AD3d 787, 789 [2006]), and while she tendered the amount she claims is owing on the mortgage after application of an offset based on the prior judgment, respondents dispute petitioner's calculation of the amount due on the mortgage, and, as before, there is no showing that the parties intended the offset or that the two transactions were in any way related (see RPAPL 1921 [1] [execution of mortgage satisfaction required only after payment of any amounts due "has actually been made"]; Marine Midland Bank v Rome Polymer, Inc., 244 AD2d 967, 968 [1997] [mortgagee not obligated to release a mortgage in exchange for pledge of a certificate of deposit rather than payment in full]). Nor is there any indication that further proceedings could serve to fill in this evidentiary gap. Concur—Mazzarelli, J.P., Saxe, Sullivan, Nardelli and Gonzalez, JJ.