Citibank N.A. v. Burns

187 A.D.3d 839

130 N.Y.S.3d 720 (Mem)

CITIBANK N.A., etc., respondent,

v.Stephanie BURNS, et al., defendants,Louis Burns, appellant.

2019–10557

Index No. 503816/19

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 10, 2020

October 14, 2020

Reingold & Tucker, Brooklyn, N.Y. (Abraham Reingold and Jordan Tucker of counsel), for appellant.

Borchert & Laspina, P.C., Whitestone, N.Y. (Edward A. Vincent and Robert W. Frommer of counsel), for respondent.

REINALDO E. RIVERA, J.P., MARK C. DILLON, JOSEPH J. MALTESE, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Louis Burns appeals from an order of the Supreme Court, Kings County (Mark I. Partnow, J.), dated August 12, 2019. The order, insofar as appealed from, denied those branches of that defendant's motion which were, in effect, pursuant to CPLR 3211(a)(1) and (5) to dismiss the complaint insofar as asserted against him.

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

In 2001, Louis Burns (hereinafter Louis) executed a power of attorney in favor of his daughter Stephanie Burns. He also transferred to Stephanie ownership of two parcels of real property located in Brooklyn, one on Decatur Street (hereinafter the subject property) and the other on Clarkson Avenue (hereinafter together the properties), while retaining a life estate in both for himself. In addition, Louis entered into a written agreement with Stephanie, inter alia, prohibiting her from mortgaging or encumbering the properties without his consent. Thereafter, Stephanie used the power of attorney to execute deeds as attorney-in-fact for Louis conveying the properties to herself and extinguishing the life estate. Stephanie subsequently encumbered the subject property, using a portion of the mortgage proceeds to purchase another property. In 2007, Louis commenced an action against Stephanie for a constructive trust and an accounting, and to have the properties reconveyed to him (hereinafter the 2007 action). Following a nonjury trial, the Supreme Court issued a judgment imposing a constructive trust and directing that the properties be reconveyed to Louis in fee simple. On appeal by Louis, this Court modified the judgment and remitted the matter to the Supreme Court for the entry of an amended judgment directing an accounting (see Burns v. Burns , 174 A.D.3d 570, 106 N.Y.S.3d 167 ).

In 2019, the plaintiff commenced this action to foreclose a mortgage given by Stephanie to the plaintiff's predecessor in interest consolidating two mortgages given on December 19, 2007, and November 13, 2008, respectively. Prior to serving an answer, Louis moved, inter alia, in effect, pursuant to CPLR 3211(a)(1) and (5) to dismiss the complaint insofar as asserted against him, arguing, among other things, that the mortgage was void ab initio as having been obtained by false pretenses. In an order dated August 12, 2019, the Supreme Court, inter alia, denied that branch of Louis's motion, without prejudice and with leave to renew upon service of Louis's answer. Louis appeals.

"A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid" ( Cruz v. Cruz , 37 A.D.3d 754, 754, 832 N.Y.S.2d 217 ; see Matter of Bowser , 167 A.D.3d 1001, 1002, 88 N.Y.S.3d 901 ; Deramo v. Laffey , 149 A.D.3d 800, 802, 52 N.Y.S.3d 119 ). "If a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing" ( ABN AMRO Mtge. Group, Inc. v. Stephens , 91 A.D.3d 801, 803, 939 N.Y.S.2d 70 ; see Jiles v. Archer , 116 A.D.3d 664, 666, 983 N.Y.S.2d 283 ).

Here, to the extent Louis contends that collateral estoppel bars the instant action (see CPLR 3211[a][5] ), the contention is without merit. He failed to satisfy his burden of proving that the issues in this case are identical to those raised in the 2007 action and were necessarily decided against Stephanie (see Strough v. Incorporated Vil. of W. Hampton Dunes , 78 A.D.3d 1037, 1039, ...