Wells Fargo Bank, NA v. Rodriguez

160 N.Y.S.3d 898, 203 A.D.3d 869, 2022 NY Slip Op 01478

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 2022
• Docket: Index No. 8542/11
• Status: Published

Opinion

Wells Fargo Bank, NA v Rodriguez (2022 NY Slip Op 01478)

Wells Fargo Bank, NA v Rodriguez

2022 NY Slip Op 01478

Decided on March 9, 2022

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 9, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
LINDA CHRISTOPHER
JOSEPH A. ZAYAS
DEBORAH A. DOWLING, JJ.

2018-05536
(Index No. 8542/11)

[*1]Wells Fargo Bank, NA, etc., respondent,

v

Maria Rodriguez, et al., defendants, E 4 St Realty, Inc., appellant.

Storch Law, P.C., Brooklyn, NY (Zvi A. Storch of counsel), for appellant.

Shapiro, DiCaro & Barak, LLC (Reed Smith LLP, New York, NY [Kerren B. Zinner and Andrew B. Messite], of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant E 4 St Realty, Inc., appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), entered February 6, 2018. The order, insofar as appealed from, denied that branch of that defendant's motion which was to vacate an order and judgment of foreclosure and sale (one paper) of the same court dated March 21, 2016.

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

In April 2011, the plaintiff commenced this action against the defendant Maria Rodriguez, among others, to foreclose a mortgage on certain real property. The original notice of pendency expired in April 2014. In June 2014, Rodriguez allegedly conveyed title to the mortgaged property to E 4 St Realty, Inc. (hereinafter E 4 St), and the deed was recorded on July 10, 2014. The plaintiff filed another notice of pendency on October 30, 2014. On March 21, 2016, the Supreme Court issued an order and judgment of foreclosure and sale, inter alia, directing the sale of the property.

In November 2017, E 4 St moved to be substituted as a defendant as successor in interest to Rodriguez, to stay the foreclosure sale, and to vacate the notice of sale and the order and judgment of foreclosure and sale. In an order entered February 6, 2018, the Supreme Court granted that branch of E 4 St's motion which was to be substituted as a defendant as successor in interest to Rodriguez, but denied the other branches of the motion. E 4 St appeals from so much of the order as denied that branch of its motion which was to vacate the order and judgment of foreclosure and sale.

Contrary to E 4 St's contentions, the Supreme Court did not err in denying that branch of its motion which was to vacate the order and judgment of foreclosure and sale (see 1077 Madison St., LLC v Dickerson, 197 AD3d 446, 447). While it is undisputed that the notice of pendency had lapsed and another had not yet been filed at the time of the alleged June 2014 conveyance of the subject property from Rodriguez to E 4 St, a notice of pendency serves to establish constructive notice of an action (see CPLR 6501; HSBC Bank USA, N.A. v Pape, 178 AD3d 683, 684). E 4 St failed to establish, however, that it lacked actual notice of the open and unsatisfied mortgage at the [*2]time of the conveyance or of the plaintiff's claim (see 1077 Madison St., LLC v Dickerson, 197 AD3d at 447; Gregg v M & T Bank Corp., 160 AD3d 936, 940).

CHAMBERS, J.P., CHRISTOPHER, ZAYAS and DOWLING, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court