Public Adm'r of Kings County v Siony

Public Adm'r of Kings County v Siony 2022 NY Slip Op 04315 Decided on July 6, 2022 Appellate Division, Second 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 July 6, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
SHERI S. ROMAN
LINDA CHRISTOPHER
WILLIAM G. FORD, JJ.
2019-03516
2019-03517
(Index No. 21760/12)

[*1]Public Administrator of Kings County, etc., plaintiff, Robert Forcina, et al., appellants,

v

Danny Siony, et al., defendants, Nathan Ehrlic, etc., et al., respondents.

Chirico Law PLLC, Brooklyn, NY (Vincent Chirico of counsel), for appellants.

Winget, Spadafora & Schwartzberg, LLP, New York, NY (Heidi M. Gootnick, Robyn Silvermintz, and Matthew Tracy of counsel), for respondent Nathan Ehrlic, P.C.

Borchert & LaSpina, P.C., Whitestone, NY (Robert W. Frommer of counsel), for respondent Emigrant Mortgage Company, Inc.

In an action, inter alia, to recover damages for fraud, the plaintiffs Robert Forcina and Josephine Forcina appeal, and the estate of Elizabeth Licata purportedly appeals, from (1) an order of the Supreme Court, Kings County (Mark I. Partnow, J.), dated January 16, 2019, and (2) an order of the same court dated January 24, 2019. The order dated January 16, 2019, granted the motion of the defendant Emigrant Mortgage Company, Inc., for summary judgment dismissing the complaint insofar as asserted against it and pursuant to CPLR 6514 to cancel any notice of pendency. The order dated January 24, 2019, denied, as academic, the motion of the defendant Nathan Ehrlic, P.C., for summary judgment dismissing the complaint insofar as asserted against it.

DECISION & ORDER

Motion by the defendants Nathan Ehrlic, P.C., and Emigrant Mortgage Company, Inc., to dismiss the appeals insofar as purportedly taken on behalf of the estate of Elizabeth Licata. By decision and order on motion of this Court dated February 28, 2020, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion is granted; and it is further,

ORDERED that the appeals insofar as purportedly taken on behalf of the estate of Elizabeth Licata are dismissed; and it is further,

ORDERED that the order dated January 16, 2019, is affirmed on the appeal by the [*2]plaintiffs Robert Forcina and Josephine Forcina; and it is further,

ORDERED that the appeal by the plaintiffs Robert Forcina and Josephine Forcina from the order dated January 24, 2019, is dismissed, as those plaintiffs are not aggrieved thereby (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144); and it is further,

ORDERED that one bill of costs is awarded to the defendants Nathan Ehrlic, P.C., and Emigrant Mortgage Company, Inc., payable by the plaintiffs Robert Forcina and Josephine Forcina.

The background facts of this case are set forth in this Court's decision and order on a related appeal (see Emigrant Mtge. Co., Inc. v Public Adm'r of Kings County, ___ AD3d ___ [decided herewith]).

After Emigrant Mortgage Company, Inc. (hereinafter Emigrant), commenced the foreclosure action that is the subject of the related appeal, the plaintiffs commenced this action against, among others, Emigrant and Nathan Ehrlic, P.C., seeking, inter alia, a judgment declaring that the conveyance by the plaintiffs Robert Forcina and Josephine Forcina (hereinafter together the Forcinas) of a property located on 74th Street in Brooklyn to Elizabeth Licata was fraudulent and void, and to recover damages for fraud.

Emigrant moved for summary judgment dismissing the complaint insofar as asserted against it and pursuant to CPLR 6514 to cancel any notice of pendency. The Forcinas opposed the motion. In an order dated January 16, 2019, the Supreme Court granted Emigrant's motion. The Forcinas appeal.

Emigrant established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it. Emigrant established that the defendants Danny Siony and Oracle Funding, Inc., were not their agents, and did not have apparent authority to act on Emigrant's behalf. Any failure by Josephine to read the closing documents and any failure by Licata to have those documents read to her is chargeable to them (see Gilman v Chase Manhattan Bank, 73 NY2d 1, 11; Kenol v Nelson, 181 AD2d 863, 866; Sofio v Hughes, 162 AD2d 518, 519; Brian Wallach Agency v Bank of N.Y., 75 AD2d 878, 879). In opposition, the Forcinas failed to raise a triable issue of fact.

The parties' remaining contentions are without merit.

Accordingly, the Supreme Court properly granted Emigrant's motion for summary judgment dismissing the complaint insofar as it is asserted against it and pursuant to CPLR 6514 to cancel any notice of pendency.

CONNOLLY, J.P., ROMAN, CHRISTOPHER and FORD, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court