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Haim Yuzary, Etc., Plaintiff-Appellant v. Wcp Wireless Lease Subsidiary LLC

New York Supreme and/or Appellate Courts Appellate Division, First Department


April 26, 2012

HAIM YUZARY, ETC., PLAINTIFF-APPELLANT,
v.
WCP WIRELESS LEASE SUBSIDIARY LLC, ET AL., DEFENDANTS, FANNIE MAE, ET AL., DEFENDANTS-RESPONDENTS.

Yuzary v WCP Wireless Lease Subsidiary LLC

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 April 26, 2012

Andrias, J.P., Saxe, Catterson, Renwick, Roman, JJ.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered March 28, 2011, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for summary judgment and granted that portion of defendant Fannie Mae's cross motion for summary judgment seeking to restrict plaintiff's mortgage to a one-quarter interest in the mortgaged property and to declare Fannie Mae's mortgage superior, unanimously modified, on the law, to so declare, and otherwise affirmed, with costs.

Plaintiff failed to establish his entitlement to summary judgment since the maturity date of the mortgage and note at issue was February 15, 1992 and his submissions raised questions of fact as to whether this action for foreclosure was timely commenced (CPLR 213(4); see CDR Creance S.A. v Euro-America Lodging Corp., 43 AD3d 45, 51 [2007]).

The motion court properly declined to dismiss the affirmative defenses alleging that plaintiff's action is based on forged documents. The submissions in this regard raise an issue of fact as to whether the signature on a letter purporting to extend the mortgage term was, in fact, forged (see Seaboard Sur. Co. v Earthline Corp., 262 AD2d 253 [1999]; cf. Banco Popular N. Am. v Victory Taxi Mgt., 1 NY3d 381, 383-384 [2004]).

The motion court also properly found that Fannie Mae's mortgage has priority over plaintiff's mortgage. Plaintiff's mortgage had, from all appearances, reached its maturity date 14 years before Fannie Mae acquired its mortgage. Thus, any foreclosure action would have been time-barred as of February 14, 1998 (CPLR 213[4]). Moreover, even assuming that the letter purporting to extend the mortgage term was genuine, it was never recorded, and therefore is not effective against Fannie Mae, which is a bona fide encumbrancer with no notice of the purported extension (Real Property Law § 291; Bergenfeld v Midas Collections, 38 AD2d 939, 939-940 [1972]; Weideman v Pech, 102 AD 163, 165-166 [1905]).

The motion court properly found that, at best, plaintiff is limited to a one-quarter interest in the mortgaged property (see Citifinancial Co. (DE) v McKinney, 27 AD3d 224, 226-227 [2006]), subordinate to the Fannie Mae mortgage.

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 26, 2012

CLERK

20120426

© 1992-2012 VersusLaw Inc.



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