Roberts v Hughes

Roberts v Hughes 2011 NY Slip Op 01570 Decided on March 3, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 3, 2011
Gonzalez, P.J., Saxe, Catterson, Acosta, Manzanet-Daniels, JJ.
3861 20710/06 3862

[*1]Chrisila L. Roberts, as Executrix of the Estate of Kathleen Hughes, etc., Plaintiff-Respondent,

v

Jeaneth Hughes, et al., Defendants, Impac Funding Corporation, Defendant-Appellant, EMC Mortgage Corporation, Intervenor-Appellant.




Pollock & Maguire, LLP, White Plains (Peter S. Dawson of
counsel), for EMC Mortgage Corporation, appellant.
Sonnenschein Nath & Rosenthal LLP, New York (Brendan E.
Zahner of counsel), for Impac Funding Corporation, appellant.
James M. Visser, Bronx, for respondent.

Order, Supreme Court, New York County (Geoffrey Wright, J.), entered August 11, 2009, which, inter alia, granted plaintiff's cross motion for summary judgment setting aside the deed to real property located at 1142 Wheeler Avenue, Bronx, New York, dated December 19, 2005 and recorded April 19, 2006, setting aside the mortgage on the aforesaid real property granted by defendant Jeaneth Hughes to defendant Impac Funding Corporation, awarding plaintiff costs of the motion as against Impac, and awarding plaintiff, sua sponte, various categories of monetary relief against defendants related to the unlawful possession of the premises, the amounts to be determined at inquest; denied defendant Impac's cross motion for summary judgment dismissal of the complaint as against it; and granted EMC Mortgage Corp.'s motion to intervene, unanimously modified, on the law and the facts, to the extent of vacating, as against defendants Impac and EMC, the awards of interim monetary relief for: taxes, bills (including water, gas and sewer), lawsuits and other liabilities incurred on the property during the pendency of this action; any decrease in market value of the property during the pendency of this action; lost rents and/or reasonable use and occupancy until such time as plaintiff takes possession; attorneys' fees; punitive damages; costs and possible sanctions against defendants, and otherwise affirmed, without costs. Appeal from the underlying decision, same court and Justice, entered December 9, 2008, unanimously dismissed, without costs, as taken from a [*2]nonappealable paper.

The motion court correctly granted plaintiff summary judgment voiding the deed and the mortgage. Plaintiff demonstrated, prima facie, its entitlement to judgment as a matter of law by showing that defendant Jeaneth Hughes, decedent's daughter, lacked any legal basis to convey to herself the subject premises or to use it as security for the mortgage, since it was lawfully under the control of the estate. The record shows that the several defects in the putative chain of title and on the face of the putative deed, among others, would have been readily ascertainable had Impac, as mortgagee, or EMC, as assignee of Impac, exercised any reasonable diligence in this regard. In response, defendants-appellants failed to raise any triable issue of material fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Since the complaint and plaintiff's motion specifically sought to void the mortgage in addition to voiding the deeds, and the December 9, 2008 decision granted plaintiff's motion in its entirety, the fact that it did not specify, in its text, that the mortgage was also thereby voided, did not make that decision inconsistent with the subsequent August 11, 2009 settled order which did specify that the mortgage was voided.

However, there was no basis for the court, at this stage of the proceedings, to enter any monetary award against the present appellants. Furthermore, the court erred in awarding attorneys' fees to plaintiff against appellants inasmuch there was no apparent statutory or other legal authorization for it (see Flemming v Barnwell Nursing Home & Health Facilities, Inc., 15 NY3d 375 [2010]).

Finally, Impac was the record holder of the mortgage during the relevant time periods, and its status as mortgagee of property that properly should have been held by plaintiff estate, remains the subject of this litigation, so that we find no basis to dismiss either Impac or EMC from the action at this juncture.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 3, 2011

CLERK