Rose v. LevineRose v. Levine
In an action to foreclose three mortgages, in which the defendants Robert Levinе, Jason Levine, Jared Levine, and Janet Torre counterclaimed for declaratory relief, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), entered July 8, 2011, as, in effect, upon renewal, (a) granted the motion of the defendants Robert Levine, Jason Levine, Jared Levine, and Janet Torre for summary judgment in connection with the first cause of action dеclaring that the maximum that is due on the first mortgage, which was dated October 9, 2002, is only $9,321.21, dismissing, insofar as asserted against those defendants, the second and third causes of action, which were to foreclose the secоnd and third mortgages, which were dated February 26, 2003, and December 2, 2003, respectively, on the first counterclaim of those defendants declaring that the second and third mortgages are invalid and unenforceable, that thе first mortgage is invalid and unenforceable except to the extent of $9,321.21, and that the mortgages are invalid against the interest that the defendant Robert Levine possessed in the subject premises as a tenant in common with the defendant Julie H. Levine, and (b) pursuant to
Ordered that the order is modified, on the law, (1) by deleting the provisions thereof, in effect, upon renewal, granting those branches of the motion of the defendants Robert Levine, Jason Levine, Jared Levine, and Janet Torre which were for summary judgment in connection with the first cause of action declaring that the maximum that is due on the first mortgage, which was dated October 9, 2002, is only $9,321.21, dismissing, insofar as asserted against those defendants, the second and third causes of action, which were to foreclose the second and third mortgages, which were dated February 26, 2003, and December 2, 2003, respectively, and on the first counterclaim of those defendants declaring that the second and third mortgages are invalid and unenforceable, and that the first mortgage is invalid and unenforceable except to the extent of $9,321.21, and substituting therefor provisions, upon renewal, denying those branches of the motion, and (2) by deleting the provision thereof, in effect, upon renewal, granting that branch of the motion of the defendants Robert Levine, Jason Levine, Jared Levine, and Janet Torre which was pursuant to
During the pendency of a divorcе action between the defendant Julie Levine (hereinafter Julie) and the defendant Robert Levine (hereinafter Robert), Julie borrowed large sums of money from her boyfriend, the plaintiff Steven Rose. The loans were memorialized by promissory notes, and secured by three mortgages on the marital residence given only to Rose, individually. The first of the three mortgages (hereinafter the first mortgage) was dated October 9, 2002, the second of the three mortgages (hereinafter the second mortgage) was dated February 26, 2003, and the third of the three mortgages (hereinafter
Subsequently, Rose commenced this action against Julie and Robert, among others, to foreclose on the subject three mortgages. Robert, along with several other dеfendants in this action, asserted counterclaims challenging the validity of the mortgages on the ground that they were given in the absence of valid consideration. By notice of motion dated January 25, 2011, Robert, along with sеveral other defendants (hereinafter collectively the moving defendants), moved, inter alia, for summary judgment declaring that the mortgages are invalid, except up to the first $9,321.21 of the first mortgage. The moving defendants сontended that Rose conceded that, although he personally paid that amount for the first mortgage, the remaining balance of mortgage loan proceeds paid to Julie, which was purportedly sеcured by the remainder of the first mortgage, as well as the entirety of the proceeds secured by the second and third mortgages, came from Rose’s wholly-owned corporation, Tally Display Corp. (hereinafter Tally). The Supreme Court granted that relief to the moving defendants.
The Supreme Court should have denied those branches of the moving defendants’ motion which were for summary judgment in connection with the first cause of action declaring that the maximum that is due on the first mortgage is only $9,321.21, dismissing, insofar as asserted against them, the second and third causes of action, which were to foreclose the second and third mortgages, respeсtively, on their first counterclaim declaring that the second and third mortgages are invalid and unenforceable, and that the first mortgage is invalid and unenforceable except to the extent of $9,321.21. The moving defendants seek such relief based on the fact that the balance of the mortgage loan proceeds paid to Julie did not originate with Rose, but with Tally.
“[T]he validity of the mortgage usually depends indirectly upon consideration, not for the mortgage itself, but for the obligation upon which it depends” (Grant S. Nelson & Dale A. Whitman, 1 Real Estate Finance Law § 2.3 [5th ed 2010]; see Restatement [Third] of Property [Mortgages] § 1.2 [a]; William F. Walsh, A Treatise on Mortgagеs § 14 at 74 [1934]). It is not necessary, however, that the party seeking to foreclose provided the consideration. A mortgage may be valid as long as proper
However, the moving defendants satisfied their prima faciе burden in connection with that branch of their motion which was for summary judgment declaring that the mortgages are invalid against Robert’s interest in the premises, and, in opposition, Rose failed to raise a triable issue of fact. At the time when Julie mortgaged her interest in the premises to Rose, she and Robert, who were still married, held their ownership interests as tenants by the entirety. “As tenants by the entirety, both spouses enjoy an equal right to possеssion of and profits yielded by the property” (Goldman v Goldman, 95 NY2d 120, 122 [2000]). However, “there is nothing in New York law that prevents one of the co-owners from mortgaging or making an effective conveyance of his or her own interest in the tenancy. To the contrary, each tenant may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other” (V.R.W., Inc. v Klein, 68 NY2d 560, 565 [1986]; see Goldman v Goldman, 95 NY2d at 122). Nevertheless, “a conveyance by one tenant, to which thе other has not consented, cannot bind the entire fee” (V.R.W., Inc. v Klein, 68 NY2d at 564; see Lawriw v City of Rochester, 14 AD2d 13, 15 [1961], affd 11 NY2d 759 [1962]; see also Kwang Hee Lee v Adjmi 936 Realty Assoc., 34 AD3d 646, 648 [2006] [“A co-owner can only encumber its own interest in property without the consent of the other co-owners”]).
Rose’s remaining contentions either are without merit or need not be reached in light of our determination.
Since this is, in part, a declaratory judgment action, the mattеr must be remitted to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that the mortgages are invalid against the interest that the defendant Robert Levine possessed in the subject premises as a tenant in common with the defendant Julie H. Levine (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Mastro, J.P., Lott, Roman and Cohen, JJ., concur.