M & T Mtge. Corp. v Larkins

[*1] M & T Mtge. Corp. v Larkins 2010 NY Slip Op 51056(U) [27 Misc 3d 142(A)] Decided on June 11, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 11, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., WESTON and RIOS, JJ
2009-959 K C.

M & T Mortgage Corporation, Respondent,

against

Maggie Larkins, Appellant.

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Anthony J. Fiorella, J.), entered April 1, 2009. The final judgment, after a nonjury trial, awarded possession to petitioner.

ORDERED that the final judgment is affirmed without costs.

Petitioner commenced this summary proceeding pursuant to RPAPL 713 (5) based upon a referee's deed dated December 18, 2008, which it obtained in an action to foreclose a mortgage. At trial, appellant, a former owner of the property, sought to dismiss the proceeding on the ground that her transfer of ownership of the property almost seven years earlier was fraudulent. The Civil Court declined to consider appellant's challenge to petitioner's title, noting that it should have been raised in the foreclosure action, and, after trial, awarded petitioner a final judgment of possession.

While a question of title can be raised as a defense in a summary proceeding (see Nissequogue Boat Club v State of New York, 14 AD3d 542 [2005]), here, appellant had ample opportunity to litigate the question of whether she owned the property in the prior foreclosure action. Indeed, appellant was a party to that action, was represented by counsel, and, by her own admission on appeal, asserted the same argument in that action as she seeks to assert in this proceeding. Since issues regarding title to the premises were raised before the Supreme Court in the prior foreclosure action at which appellant appeared and was represented by counsel the Civil Court properly refused to consider those issues in the instant proceeding (see generally Ryan v New York Tel. Co., 62 NY2d 494 [1984]; Manufacturers and Traders Trust Co. v Bittorf, 216 AD2d 72 [1995]; cf. Nissequogue Boat Club, 14 AD3d at 544 [a tenant was collaterally estopped from challenging title in an action to determine title, where the same claim had been made in defense of a prior summary proceeding]). [*2]

Accordingly, the final judgment is affirmed.

Golia, J.P., Weston and Rios, JJ., concur.
Decision Date: June 11, 2010