Goeller v. Patrella

Appellate Division of the Supreme Court of New York

Goeller v. Patrella

268 A.D.2d 477, 701 N.Y.S.2d 915, 2000 N.Y. App. Div. LEXIS 617

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 18, 2000

StatusPublished

This text of 268 A.D.2d 477 (Goeller v. Patrella) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Goeller v. Patrella, 268 A.D.2d 477, 701 N.Y.S.2d 915, 2000 N.Y. App. Div. LEXIS 617 (N.Y. Ct. App. 2000).

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Opinion

—In a proceeding, inter alla, to discharge a mortgage held by the defendants Home Credit Corp. and Home Loan and Investment Bank, FSB, on certain real property owned by a testamentary trust, Home Credit Corp. and Home Loan and Investment Bank, FSB, appeal from a decree of the Surrogate’s Court, [478]*478Nassau County (Radigan, S.), dated October 21, 1998, which, after a hearing, granted the petition and permanently enjoined them from foreclosing on the mortgage and/or collecting on the note against the trust.

Ordered that the decree is affirmed, with costs.

It was the duty of the appellants to inquire as to whether the proceeds obtained through the use of a trust asset were to be used for the ultimate benefit of the trust (see, Dye v Lewis, 40 AD2d 582, affd sub nom. Dye v Lincoln Rochester Trust Co., 31 NY2d 1012). Since the appellants had reason to know that the conveyance was made in contravention of the trust, the transaction is void (see, EPTL 7-2.4; see also, National Sur. Co. v Manhattan Mtge. Co., 185 App Div 733, 736-737, affd 230 NY 545; Boskowitz v Held, 15 App Div 306, 310-311, affd 153 NY 666).

The appellants’ remaining contentions are either without merit or are not properly before this Court as they are raised for the first time on appeal (see, Green Point Sav. Bank v Oppenheim, 217 AD2d 571). O’Brien, J. P., S. Miller, McGinity and Smith, JJ., concur.

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—In a proceeding, inter alla, to discharge a mortgage held by the defendants Home Credit Corp. and Home Loan and Investment Bank, FSB, on certain real property owned by a testamentary trust, Home Credit Corp. and Home Loan and Investment Bank, FSB, appeal from a decree of the Surrogate’s Court, [478]*478Nassau County (Radigan, S.), dated October 21, 1998, which, after a hearing, granted the petition and permanently enjoined them from foreclosing on the mortgage and/or collecting on the note against the trust.

Ordered that the decree is affirmed, with costs.

It was the duty of the appellants to inquire as to whether the proceeds obtained through the use of a trust asset were to be used for the ultimate benefit of the trust (see, Dye v Lewis, 40 AD2d 582, affd sub nom. Dye v Lincoln Rochester Trust Co., 31 NY2d 1012). Since the appellants had reason to know that the conveyance was made in contravention of the trust, the transaction is void (see, EPTL 7-2.4; see also, National Sur. Co. v Manhattan Mtge. Co., 185 App Div 733, 736-737, affd 230 NY 545; Boskowitz v Held, 15 App Div 306, 310-311, affd 153 NY 666).

The appellants’ remaining contentions are either without merit or are not properly before this Court as they are raised for the first time on appeal (see, Green Point Sav. Bank v Oppenheim, 217 AD2d 571). O’Brien, J. P., S. Miller, McGinity and Smith, JJ., concur.

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268 A.D.2d 477, 701 N.Y.S.2d 915, 2000 N.Y. App. Div. LEXIS 617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goeller-v-patrella-nyappdiv-2000.

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