Bayview Loan Servicing, LLC v. White

In an action pursuant to RPAPL article 15 to quiet title to real property and for declaratory relief, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Martin, J.), dated June 12, 2014, as granted those branches of the motion of the defendant Winston White which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the first and second causes of action insofar as asserted against him.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the defendant Winston White which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the first and second causes of action insofar as asserted against him are denied.

The real property that is the subject of this action was owned by the defendants Reginald White and Winston White as tenants-in-common, with each holding a 50% interest in the property. In a deed dated March 30, 2006, executed by Reginald, he purported to convey the entire property to the defendant 1070 Park Place, LLC (hereinafter Park), a company of which Reginald was a principal. On or about December 14, 2007, as security for a loan given by InterBay Funding, LLC (hereinafter InterBay), to Park, Park gave InterBay a mortgage purporting to encumber the entire property. This mortgage was later assigned to the plaintiff.

In March 2008, Winston commenced an action against Reginald and Park, inter alia, to partition the subject property (hereinafter the partition action). Neither InterBay nor the plaintiff was named as a party in the partition action, and no notice of pendency was filed with respect to the property in the partition action. Reginald and Park failed to appear in the partition action, and in a default judgment dated February 9, 2009, the Supreme Court, inter alia, declared that the conveyance of the property from Reginald to Park by deed dated December 14, 2007, was void ab initio.

A motion to dismiss pursuant to CPLR 3211 (a) (1) may be granted if “documentary evidence utterly refutes [the] plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law” (Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59 , 63 [2012] [citation and internal quotation marks omitted]). On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, a court “must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory” (id. at 63 [internal quotation marks omitted]).

Here, the Supreme Court should have denied those branches of Winston’s motion which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the first and second causes of action insofar as asserted against him. While the default judgment in the partition action declared that the deed from Reginald to Park is void, the plaintiff is not bound by that judgment because the plaintiff was not a party in the partition action, or in privity with a party in the partition action (see Buechel v Bain, 97 NY2d 295 , 303-305 [2001]; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 , 485-486 [1979]). Further, when a cotenant who has a partial interest in real property executes a deed that purports to convey full title to the property, the deed is not entirely void; rather, the deed is effective, but only to the extent of conveying the grantor’s interest in the property (see Lee v Wiegand, 28 AD2d 560 , 561 [1967]). Thus, since Reginald had a