Bank of N.Y. Mellon Trust Co., N.A. v. Universal Dev., LLC
Opinion
Bank of N.Y. Mellon Trust Co., N.A. v Universal Dev., LLC
2026 NY Slip Op 05002
August 19, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Bank of New York Mellon Trust Company, N.A., etc., appellant-respondent, et al., plaintiff,
v
Universal Development, LLC, et al., defendants, Bryan Hemmings, et al., respondents-appellants.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on August 19, 2026
2021-06896, (Index No. 705459/13)
Lara J. Genovesi, J.P.
Linda Christopher
Barry E. Warhit
Lourdes M. Ventura, JJ.
Fidelity National Law Group, New York, NY (Michael C. Sferlazza of counsel), for appellant-respondent.
Polanco & Associates, PLLC, Cambria Heights, NY (Jose C. Polanco of counsel), for respondents-appellants.
DECISION & ORDER
In an action pursuant to RPAPL article 15 to quiet title to real property, the plaintiff Bank of New York Mellon Trust Company, N.A., appeals, and the defendants Bryan Hemmings and Violette Patrick cross-appeal, from an order of the Supreme Court, Queens County (Pam Jackman Brown, J.), entered August 16, 2021. The order, insofar as appealed from, denied those branches of the plaintiffs' motion which were for summary judgment on the amended complaint insofar as asserted by the plaintiff Bank of New York Mellon Trust Company, N.A., against the defendants Bryan Hemmings and Violette Patrick and dismissing the eighth and tenth affirmative defenses of those defendants. The cross-appeal was deemed dismissed pursuant to 22 NYCRR 1250.10(a).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiffs' motion which were for summary judgment on the amended complaint insofar as asserted by the plaintiff Bank of New York Mellon Trust Company, N.A., against the defendants Bryan Hemmings and Violette Patrick and dismissing the eighth and tenth affirmative defenses of those defendants are granted.
In 2013, the plaintiffs commenced this action pursuant to RPAPL article 15 to quiet title to certain real property located in Queens. The amended complaint alleged that on December 9, 2003, the defendant Bryan Hemmings obtained title to the property from the defendant Universal Development, LLC (hereinafter Universal). Additionally, the amended complaint alleged that on the same date, in connection with the purchase of the property, Hemmings executed a note in favor of Ameritrust Mortgage Bankers, Inc., in the sum of $391,000, which was secured by a mortgage encumbering the property. The amended complaint further alleged that the original mortgage and the deed conveying the property from Universal to Hemmings did not appear of record in the Office of the City Register of the City of New York and were presumed lost or destroyed.
It is undisputed that on December 9, 2003, Hemmings conveyed the property to himself and the defendant Violette Patrick, as joint tenants, pursuant to a deed that was recorded on December 7, 2004. In the amended complaint, the plaintiffs sought, inter alia, a judgment [*2]determining that as of December 9, 2003, the plaintiff Bank of New York Mellon Trust Company, N.A. (hereinafter BNYM), the alleged holder of the note, held "a first mortgagee interest in the Premises in the amount of $391,000.00," or, in the alternative, adjudging BNYM to be the holder of an equitable first mortgage lien encumbering the property in that amount.
Hemmings and Patrick interposed an amended answer to the amended complaint asserting various affirmative defenses. As relevant to this appeal, the eighth affirmative defense alleged, among other things, that Mortgage Electronic Registration Systems, Inc., "as nominee for a principal," did not have the explicit power to assign its principal mortgagee's interest in the note or mortgage to BNYM. The tenth affirmative defense alleged, inter alia, that the mortgage was either not recorded or not timely recorded and, therefore, BNYM's claims against Hemmings and Patrick, "the holder[s] of record title to the Premises and bona fide purchase[rs] for value, [were] barred." The plaintiffs moved, among other things, for summary judgment on the amended complaint insofar as asserted by BNYM against Hemmings and Patrick and dismissing the eighth and tenth affirmative defenses of Hemmings and Patrick. In an order entered August 16, 2021, the Supreme Court, inter alia, denied those branches of the plaintiffs' motion. BNYM appeals.
"'A certificate of acknowledgment attached to an instrument such as [a] . . . mortgage raises a presumption of due execution, which presumption can be rebutted only after being weighed against any evidence adduced to show that the subject instrument was not duly executed'" (Bank of N.Y. Mellon v West, 183 AD3d 683, 684, quoting Tribeca Lending Corp. v Huseinovic, 151 AD3d 901, 902). "'[A] certificate of acknowledgment should not be overthrown upon evidence of a doubtful character, such as the unsupported testimony of interested witnesses, nor upon a bare preponderance of evidence, but only on proof so clear and convincing as to amount to a moral certainty'" (id., quoting Albany County Sav. Bank v McCarty, 149 NY 71, 80; see Oro v Figeroa, 208 AD3d 1338, 1339-1340).
Here, the plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law on the amended complaint insofar as asserted by BNYM against Hemmings and Patrick by submitting, among other things, a copy of the mortgage bearing Hemmings's signature, which contained a notarized certificate of acknowledgment (see Bank of N.Y. Mellon v West, 183 AD3d at 684; Tribeca Lending Corp. v Huseinovic, 151 AD3d at 902). In opposition, Hemmings and Patrick failed to rebut the presumption of due execution created by the certificate of acknowledgment (see Bank of N.Y. Mellon v West, 183 AD3d at 684; Tribeca Lending Corp. v Huseinovic, 151 AD3d at 902; Clark v Mortgage Servs. Unlimited, 78 AD3d 1104, 1104-1105).
Further, the plaintiffs established their prima facie entitlement to judgment as a matter of law dismissing the eighth affirmative defense of Hemmings and Patrick. Contrary to the contention of Hemmings and Patrick, the plaintiffs established, prima facie, that BNYM had standing to commence this action by submitting evidence demonstrating that the note was in BNYM's possession when the action was commenced (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 361-362; Citimortgage, Inc. v Etienne, 172 AD3d 808, 811). In opposition, Hemmings and Patrick failed to raise a triable issue of fact.
The plaintiffs also established their prima facie entitlement to judgment as a matter of law dismissing the tenth affirmative defense of Hemmings and Patrick. "The New York Recording Act (Real Property Law § 290 et seq.), inter alia, protects a good faith purchaser for value from an unrecorded interest in a property, provided such a purchaser's interest is first to be duly recorded" (436 Franklin Realty, LLC v U.S. Bank N.A., 188 AD3d 960, 961 [internal quotation marks omitted]; see Kearny Bank v Beaux Equities, LLC, 237 AD3d 1181, 1182). A bona fide purchaser for value has been "defined as 'one who purchases real property in good faith, for valuable consideration, without actual or record notice of another party's adverse interests in the property and is the first to record the deed or conveyance'" (Irwin v Regal 22 Corp., 175 AD3d 67
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