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Rosenzweig v. Givens

13 N.Y.3d 774 Court N.Y. Decision date 2009-09-17 English

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Majority

p. 774
[915 NE2d 1140, 886 NYS2d 845]
Joseph I. Rosenzweig, Appellant, v Radiah K. Givens, Respondent.
Decided September 17, 2009
p. 775
APPEARANCES OF COUNSEL
Marc E. Elliott, EC., New York City (Marc E. Elliott of counsel), for appellant.
Law Offices of Barbara H. Katsos, EC., New York City (Barbara H. Katsos of counsel), for respondent.

OPINION OF THE COURT

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

In connection with the mortgage foreclosure action, defendant has alleged sufficient facts to warrant denial of plaintiffs prediscovery motion for summary judgment, having asserted that plaintiff, an attorney who was then her paramour, secured the mortgage through fraud and overreaching and by exploiting a fiduciary relationship with her (see generally Matter of Greiff, 92 NY2d 341 , 345 [1998]). She contends that, under the guise of buying her a condominium, he induced her to enter into a mortgage arrangement whereby he was the lender and she the borrower. Furthermore,

p. 776
plaintiff hired a friend to represent them both at the closing. Defendant claims that plaintiff paid all expenses related to the condominium and did not seek mortgage payments or any other contribution from defendant until three years later— after their marriage and defendant’s subsequent discovery that plaintiff already had a wife and two children, rendering their marriage bigamous. Plaintiff then demanded payment, accelerated the loan and pursued foreclosure against defendant. We also conclude that defendant has stated a prima facie case of fraudulent inducement to marriage (see Blossom v Barrett, 37 NY 434 [1868]; see also Tuck v Tuck, 14 NY2d 341 , 344 [1964]).

Chief Judge Lippman and Judges Ciparick, Grapfeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, etc.

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