PRESENT: HON. JOEL K. ASARCH Justice of the Supreme Court

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: LA. PART 13 ZORA SORMELEY, Plaintiff - against - DECISION AND ORDER DA VOR SURIC and HAlMA SURlC, Inde)( No: and Defendants Motion Sequence Nos: 004 & 005 Original Retur Date: MIDLAND CREDIT MANAGEMENT, INC., P. MORGAN CHASE BANK, N.A., and "JOHN DOE #1" through JOHN DOE # 12", the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint, Defendants. PRESENT: HON. JOEL K. ASARCH Justice of the Supreme Court The following named papers numbered 1 to 8 were submitted on this Notice of Motion and Notice of Cross-Motion on May : Papers numbered Notice of Motion and Affirmation - (Seq. 004) Affirmation in Opposition Reply Affrmation (and in Opposition to Cross-Motion) Notice of Cross Motion and Affrmations - (Seq. 005) Affirmation in Furer Support The motion by the plaintiff, Zora Sormeley, pursuant to CPLR 312(4) to compel defendant

2 Haima Suric to produce outstanding items (to wit: income ta)( returns and ban records) as demanded in plaintiff s first Notice to Produce dated July 6, 2011, and in her second Notice to Produce dated December 28, 2011, is denied as academic in view of the decision on the cross-motion. The cross-motion pursuant to CPLR 3212 by defendant Haima Suric for summar judgment dismissing the complaint as to her and for summary judgment on the first and second counterclaims asserted in her answer is granted as hereinafter provided. BACKGROUND Although not the owner of premises known as 118 Birchwood Park, Jericho, New York defendant Davor Suric e)(ecuted three mortgages encumbering said premises to secure three separate loans, including a $ loan in May, 1995; a $ loan in July, 1995, and a $ loan in April, Each of the three mortgages was recorded in the office of the County Clerk of Nassau County by plaintifflender. According to plaintiff, defendant Davor Suric curently owes a total sum of$ as and for principal, and $ in interest, having failed to make any payments on the loans after June, Upon defendant mortgagor s default, plaintiff elected to accelerate the entire principal balance due and owing on each of the loans and commenced this action to foreclose on the three separate mortgages given by defendant Davor Suric to plaintiff as collateral for the loans. In her complaint, plaintiff alleges that defendant Davor Suric was not the owner of the propert secured by each of the mortgages at the time the mortgages were e)(ecuted, or at any time thereafter. Plaintiff fuer alleges that defendant Haima Suric was unjustly enriched by the loans made by plaintiff to Haima s husband, Davor, and she is equitably estopped from defending this action by alleging that the mortgges at issue were not e)(ecuted by her. Plaintiff seeks to foreclose on the mortgages and place a lien on the premises and asserts

3 claims against defendants based on fraud, unjust enrichment and equitable estoppel. In support of the motion to compel defendant Haima Suric to produce certain outstanding discovery items, plaintiff asserts that she should have the opportunity to procure and r view records regarding, inter alia defendant Haima Suric s savings and checking accounts from the inception of the first loan until the time interest payments ceased. Plaintiff fuher alleges that defendant Haima Suric has attempted to distance herself from the alleged wrongdoings and misrepresentations of her husband by testifying at her deposition that she first leared that her husband had placed mortgages on her home when she received the summons and complaint in this matter on or about August In her response to interrogatories, she denied having any joint ban accounts with Davor during the relevant period ( ) and stated at her deposition that she was the sole owner of certain ban accounts for the years 2003 through In an attempt to establish whether the proceeds from loans defendant Davor Suric received from plaintiff were placed in bank accounts owned by defendant Haima Suric, and whether she paricipated in a conspiracy to defraud plaintiff, plaintiff seeks discovery of various ban records as well as copies of defendant wife s Federal and New York State income ta) returns for the years 1995 through 2002, as demanded in Item " I" of plaintiffs Notice to Produce dated July (E)(hibit " ), and to compel defendant Haima Suric to produce true copies of her Federal income ta) return for the years 2003 through 2008, as demanded in Item " I" of plaintiffs Second Notice to Produce dated December (E)(hibit B). Plaintiff also seeks an Order directing said defendant to produce true copies of all savings accounts and checking accounts held by defendant Haima Suric for the years 1995 through 2002, as demanded in Items " 17" and " 18" of plaintiffs Notice to Produce dated July 6, 2011 and true copies of all savings accounts and checking accounts

4 held by Haima Suric for the years 2003 through 2008, as demanded in Items "2" and "3" of plaintiffs Second Notice to Produce dated December 28, Defendant Haima Suric has cross-moved for summar judgment dismissing the complaint asserting statute of limitations grounds as well as the fact that she was not a par to the subject notes/mortgages and was neither present at the time of the transactions nor had any knowledge thereof. She fuher maintains that plaintiff failed to perform a title search vis-a-vis the premises or any other investigation as to ownership, prior to making the loans and obtaining the mortgages. Had she done so, defendant contends plaintiff would have leared that defendant Davor Suric did not have title to the premises. ANAL YSIS As the proponent of a motion for summary judgment, defendant Haima Suric bears the burden of making a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient proof to demonstrate the absence of any material issue offact. Alvarez Prospect Hasp. 68 NY2d (1960). Once the movant has satisfied this burden, the burden shifts to the opponent of the motion to lay bare her proof and demonstrate the e)(istence of a triable issue of fact. Chance Felder 33 AD3d (2 Dept 2006). The record is devoid of any evidence that defendant Haima Suric actively paricipated in the transactions pertaining to the mortgages at issue herein or consented in any way to the encumbrances placed by her husband, defendant Davor Suric, on propert that was owned solely in her name from the time she purchased it in or about September 30, 1991 with funds inherited from her father and a loan obtained from Greenpoint Savings Ban. Where propert is owned by a husband and wife as tenants by the entirety, both spouses enj

5 an equal right to possession of, and profits yielded by, the property. If a husband gives a mortgage on propert he holds with his wife as tenants by the entirety, the mortgage is not a lien on the wife interest. Each tenant may sell, mortgage or encumber his or her right in the propert, subject to the continuing rights ofthe other. Goldman Goldman 95 NY2d 120, 122 (2000). Here, defendant husband had no ownership interest in the subject propert. It is well established that a putative mortgagor must have a mortgagable interest in the property sought to be charged as security for the mortgage obligation. Citimortgage, Inc. McNeil 30 Misc3d 1216(A) (N. Y.Sup. 2011); Boyarskiv Froccaro 125 Misc2d 352 (N.Y.Sup. 1984). Any mortgage, therefore, based on a deed which is forged or made under false pretenses is void where the purorted mortgagor does not have a mortgagable interest in the propert. ab initio First Natl. Bank of Nev. Wiliams 74 AD3d 740, 742 (2 Dept 20 10) (citations and quotation marks omitted). If a document purortedly conveying a propert interest is void, it conveys nothing. A subsequent bonafide purchaser or bonajide encumbrancer for value receives nothing. ABN AMRO Mtg. Group, Inc. Stephens, 91 AD3d 801, 803 (2 Dept 2012). Deeds and encumbrances that are forged or e)(ecuted under false pretenses are the result of fraud in the e)(ecution and are void ab initio. JP Morgan Chase Bank Kalpakis 30 Misc 3d 1236(A) (N. Sup. 2011). As such plaintiff has no right, equitable or otherwise, to foreclose on mortgages given on propert which defendant mortgagor did not own. In opposition to defendant Haima Suric s cross-motion for summar judgment dismissing the complaint as to her, plaintiff has failed to raise a triable issue of fact as to the viabilty of the subject mortgages or defendant Haima Suric s liability for the debt incured by her husband. (A) mortgagee is under a duty to make an inquiry where it is aware of facts ' that would lead

6 ' " a reasonably prudent lender to make inquiries of the circumstances of the transactional issue. Stracham Bresnick 76AD3d 1009, 1010 (2 nd Dept2010), quoting LaSalle BankNatl. Ass 'nvally, 39 AD3d (2 Dept 2007). One who fails to make such inquiries, when the circumstances warant that he do so, is not a bona fide encumbrancer for value. JP Morgan Chase Bank Munoz 85 AD3d 1124, 1126 (2 Dept 2011). Plaintiff herself has testified that no title search was performed to establish that defendant Davor Suric was a record owner ofthe subject property at the time the mortgages were e)(ecuted. It is undisputed that, at the relevant time, title to the mortgaged premises was in the name of defendant Haima Suric and was never at any time conveyed to defendant Davor Suric. In order to recover damages for fraud, a plaintiff is required to prove, by clear and convincing evidence, a misrepresentation or material omission of fact, which was false and known by defendant to be false, made for the purose of inducing plaintiff to rely upon it, justifiable reliance and injury. Mandarin Trading Ltd Wildenstein 16 NY3d 173, 178 (2011); Lama Holding Co. Smith Barney, 88 NY2d 413, 421 (1996). Furher, there must be a detailed statement of the circumstances constituting the wrong. CPLR 3016(b). Inasmuch as the complaint is devoid of any facts suffcient to indicate paricipation by defendant Haima Suric in the transactions at issue, or any material representation made by her plaintiffs fraud claim against defendant Haima Suric is deficient and must be dismissed. Moreover based on plaintiffs own admissions, plaintiff canot validly claim justifiable reliance on any actionable misrepresentations or concealments by plaintiff as none was alleged. Zariett Lombardier Ltd Maslow 29 AD3d 495, 496 (15t Dept 2006). To state a cause of action to recover damages for unjust enrichment, a plaintiff must allege

7 that 1) the other par was enriched, 2) at the plaintiffs e)(pense and that 3) it would be against equity and good conscience to permit that par to retain that which plaintiff seeks to recover. Rosenzweiz Friedland, 84 NY3d (2 Dept 2011); Levin Kitsis 82 AD3d 1051, 1053 Dept 2011 ) (citations and internal quotation marks omitted). The essence of unjust enrichment is that one par has received money or a benefit at the e)(pense of another. Georgia Malone Co., Inc. Ralph Rieder 86 AD3d (15t Dept 2011). Unjust enrichment does not require the performance of any wrongful act by the one enriched. Innocent paries may frequently be unjustly enriched. Simonds Simonds 45 NY2d 233, 242 (1978). A cause of action for unjust enrichment accrues upon the occurence of the wrongful act giving rise to a duty of restitution. Even assuming that an unjust enrichment claim is legally cognizable under the facts alleged, the claim accrued upon defendant Davor Suric s receipt of the loan proceeds at the time each ofthe loans was made. Inasmuch as the last loan was made on April, 2002, an unjust enrichment cause of action is time bared by the applicable si)( year statute of limitations. CPLR 213(1). In the fourh cause of action, plaintiff seeks a lien on the premises alleging that defendants are equitably estopped from enforcing their "rights which would work fraud or injustice upon plaintiff who loaned money to defendants unjustifiable reliance upon defendants' words or conduct." Inasmuch as plaintiff has failed to allege any representation made by, or conduct on the par of defendant Haima Suric, on which the plaintiff relied or which caused plaintiffto change her position the claim must be dismissed as to said defendant. Kopelowitz Co., Inc. Mann 83 AD3d (2 Dept 2011). Plaintiff fails to allege any conduct on the par of defendant Haima Suric which would preclude or estop her from disclaiming the validity ofplaintiffs mortgages. Further, the court

8 " ' ' " notes that equitable estoppel does not, in and of itself, state a cause of action. It is simply a theory by which a portion of a cause of action may be proved. Pursuant to Real Property Law 329: (a)n owner of real propert... may maintain an action to have any recorded instrument in writing relating to such real propert or interest therein, other than those required by law to be recorded... declared void or invalid, or to have the same canceled of record as to said real property. By her first and second counterclaims, defendant Haima Suric seeks cancellation of each of the mortgages herein pursuant to Real Propert Law 329; a declaration that said mortgages are of no force or legal effect; and a direction that the Nassau County Clerk remove each of the mortgages of record from the premises predicated on the fact that, at the time the subject mortgages were e)(ecuted, defendant Davor Suric was not the owner of the mortgaged premises. Here, defendant Haima Suric has made a prima facie showing of entitlement to summar judgment in her favor declaring that three mortgages at issue herein are invalid. In opposition plaintiff has failed to raise an issue of fact sufficient to require a trial. While ( a) court will impose an equitable mortgage where the facts surounding a transaction evidence that the paries intended that a special piece of property is to be held or transferred to secure an obligation... it is necessar that an intention to create such a charge clearly appear from the language and the attendant circumstances (Fremont Inv. Loan De/sol 65 AD3d 1013 (2 Dept 2009), quoting Tornatore Bruno 12 AD3d 1115, (4 Dept 2004) (internal quotation marks and citations omitted)). Plaintiff has failed to meet her burden of establishing the intent necessar to impose an equitable mortgage. Accordingly, plaintiffs motion to compel disclosure is denied. Defendant Haima Suric

9 cross-motion for summar judgment pursuant to CPLR 3212 dismissing the complaint as to her and granting judgment on the first two counterclaims asserted in her answer is granted. It is hereby declared that the subject mortgages are invalid and the County Clerk of Nassau County is directed to cancel said mortgages and remove them from the County records. In view of the foregoing, defendant Haima Suric s third counterclaim sounding in slander on title is severed and continued. In all other respects, the motion and cross-motion are denied. This constitutes the Decision and Order of the Court. The defendant Haima Suric shall settle judgment in accordance herewith pursuant to 22 NYCRR Dated: Mineola, N ew York July Copies mailed to: Peter Roach & Associates, P. Attorneys for Plaintiff Markotsis & Lieberman, P. Attorneys for Defendant Haima Suric ENTEREr JUL NASSAU COU COUNTY CLERK" OFfh.