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Harris v. Pitts

Supreme Court of New York, Second Department

September 11, 2013

Mary Harris, appellant,
v.
Gilbert Pitts, et al., respondents, et al., defendants; Norman Dodd, nonparty-appellant. Index No. 18989/08

Alter & Barbaro, Brooklyn, N.Y. (Bernard M. Alter of counsel), for appellant and nonparty-appellant.

Balfe & Holland, P.C., Melville, N.Y. (Lee E. Riger of counsel), for respondent Gilbert Pitts.

Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Edward Rugino of counsel), for respondent Mortgage Electronic Registration Systems, Inc.

Rosenberg Calica & Birney LLP, Garden City, N.Y. (William J. Birney and Peter J. Williams of counsel), for respondent American Dream Mortgage Bankers, Inc.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, SYLVIA HINDS-RADIX, JJ.

DECISION & ORDER

In an action, inter alia, to set aside a deed dated July 30, 2007, and a subsequent deed and mortgage, the plaintiff, Mary Harris, and the nonparty Norman Dodd, appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated September 15, 2011, which granted the separate motions of the defendants Gilbert Pitts, Mortgage Electronic Registration Systems, Inc., and American Dream Mortgage Bankers, Inc., for summary judgment dismissing the amended complaint and to vacate the notice of pendency.

ORDERED that the appeal by Norman Dodd is dismissed, as he is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

ORDERED that the order is affirmed on the appeal by the plaintiff Mary Harris; and it is further,

ORDERED that one bill of costs is awarded to the respondents.

"A person is aggrieved within the meaning of CPLR 5511 when he or she asks for relief but that relief is denied in whole or in part, ' or, when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part'" (Matter of Michael O.F., 101 A.D.3d 1121, 1122, quoting Mixon v TBV, Inc., 76 A.D.3d 144, 156-157; see CPLR 5511). The order appealed from granted relief to the defendants against the plaintiff, Mary Harris. Since the nonparty-appellant is not aggrieved by the order appealed from, his appeal must be dismissed (see CPLR 5511; Mixon v TBV, Inc., 76 A.D.3d at 156-157).

The plaintiff, Mary Harris, is the biological daughter and heir of the late Joseph Barnett (hereinafter Joseph). In a deed dated July 30, 2007, Joseph transferred the subject premises to his stepdaughter Rosemarie Robinson. Robinson thereafter sold the premises to the defendant Gilbert Pitts. Pitts financed his purchase by borrowing funds from the defendant American Dream Mortgage Bankers, Inc. (hereinafter ADMB), secured by a mortgage on the premises that was given to the defendant Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), as nominee.

This action was commenced to set aside the July 30, 2007, deed to Robinson and the subsequent conveyances on the ground that Joseph's transfer of the premises to Robinson was the result of undue influence. Pitts, ADMB, and MERS (hereinafter collectively the moving defendants) separately moved for summary judgment dismissing the amended complaint and vacating the notice of pendency, in which the defendant Yvonne Barnett joined. The Supreme Court granted the motions.

The moving defendants established their prima facie entitlement to judgment as a matter of law by submitting deposition testimony and affidavits of three witnesses to Joseph's execution of the deed dated July 30, 2007, establishing that the transaction was free from undue influence, as well as documentary evidence supporting Joseph's intent to transfer the premises to Robinson (see Hearst v Hearst, 50 A.D.3d 959; Feiden v Feiden, 151 A.D.2d 889). In opposition, Harris failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 562). Harris's submissions consisted solely of mere suspicion, speculation, and conjecture, which are insufficient to defeat a motion for summary judgment (see Fredette v Town of Southampton, 95 A.D.3d 939; Stock v Otis El. Co., 52 A.D.3d 816; cf. Coury v Arcuri, 262 A.D.2d 268).

The moving defendants' remaining contentions need not be addressed in light of our determination.

DILLON, J.P., CHAMBERS, AUSTIN and HINDS-RADIX, JJ., concur.


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