Andre Doyle v Paul Siddo

Doyle v Siddo 2006 NY Slip Op 05908 [31 AD3d 697] July 25, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 20, 2006

Andre Doyle, Respondent,
v
Paul Siddo, Defendant, and Roland Tibert, Appellant.

—[*1]

In an action, inter alia, to impose a constructive trust upon certain real property, the defendant Roland Tibert appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Harkavy, J.), dated April 6, 2005, as denied his cross motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against him.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly determined that the complaint, which is assumed to be true and accorded every favorable inference on the cross motion of the defendant Roland Tibert pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against him (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Schneider v Hand, 296 AD2d 454 [2002]), alleged that the plaintiff openly possessed and occupied the subject premises pursuant to a claim of equitable ownership prior to Tibert's purchase. Accordingly, Tibert may have had a duty to inquire with regard to the plaintiff's possession, such that he would not be considered a bona fide purchaser for value who is entitled to the protections of Real Property Law § 291 (see Phelan v Brady, 119 NY 587, 591-592 [1890]; Webster v Ragona, 7 AD3d 850, 854-855 [2004]; Vitale v Pinto, 118 AD2d 774, 776 [1986]). Under these circumstances, the cross motion was correctly denied. Crane, J.P., Mastro, Skelos and Dillon, JJ., concur.