Cave, LLP, New York, NY (Suzanne M. Berger and Catherine E.
Welker of counsel), for appellant.
J. Broderick, P.C., Forest Hills, NY (Kenneth R. Berman of
counsel), for respondents.
E. CHAMBERS, J.P., JOSEPH J. MALTESE, BETSY BARROS, FRANCESCA
E. CONNOLLY, JJ.
DECISION & ORDER
action, inter alia, pursuant to RPAPL article 15 to quiet
title to real property, the defendant appeals from an order
of the Supreme Court, Nassau County (Brown, J.), dated
September 2, 2014, which denied its motion pursuant to CPLR
3211(a)(7) or, in the alternative, pursuant to CPLR 3212, to
dismiss the complaint and for leave to enter a default
judgment on its counterclaim for sanctions.
that the order is modified, on the law, by deleting the
provision thereof denying that branch of the defendant's
motion which was pursuant to CPLR 3211(a)(7) to dismiss the
complaint, and substituting therefor a provision granting
that branch of the motion to the extent of dismissing the
plaintiff's sole cause of action except insofar as it is
predicated on the allegation that the subject promissory note
has been satisfied, and otherwise denying that branch of the
motion; as so modified, the order is affirmed, with costs to
action pursuant to RPAPL article 15, the plaintiffs seek to
cancel a mortgage against their premises, alleging, inter
alia, that the trading of the mortgage independent of the
promissory note "voided and nullified" the
mortgage, that a 2010 assignment of the mortgage, independent
of the note, was a nullity, and that the promissory note has
been satisfied. The defendant moved, inter alia, pursuant to
CPLR 3211(a)(7) to dismiss the complaint.
considering a motion to dismiss pursuant to CPLR 3211(a)(7),
the court is required to accept the facts as alleged in the
complaint as true, accord the plaintiffs the benefit of every
favorable inference, and determine only whether the facts as
alleged fit within any cognizable legal theory (see Leon
v Martinez, 84 N.Y.2d 83, 87-88; Acocella v Wells
Fargo Bank, N.A., 139 A.D.3d 647; Bayview Loan
Servicing, LLC v White, 134 A.D.3d 755; Pirrelli v
OCWEN Loan Servicing, LLC, 129 A.D.3d 689; Jahan v
U.S. Bank N.A., 127 A.D.3d 926; Benson v Deutsche
Bank Natl. Trust, Inc., 109 A.D.3d 495). Although the
facts pleaded are presumed to be true and are to be accorded
every favorable inference, "bare legal conclusions as
well as factual claims flatly contradicted by the record are
not entitled to any such consideration" (Everett v
Eastchester Police Dept., 127 A.D.3d 1131, 1132).
maintain a cause of action to quiet title, a plaintiff must
allege actual or constructive possession of the property and
the existence of a removable cloud on the property, which is
an apparent title to the property, such as in a deed or other
instrument, that is actually invalid or inoperative
(see RPAPL 1515; Acocella v Wells Fargo Bank,
N.A., 139 A.D.3d at 649; Acocella v Bank of N.Y.
Mellon, 127 A.D.3d 891; Barberan v Nationpoint,
706 F.Supp.2d 408, 418 [US Dist Ct, S.D. NY]).
the documentary evidence conclusively established the
existence of the subject mortgage and note. The vast majority
of the allegations in the complaint fail to set forth the
existence of any bona fide justiciable controversy as to
whether the subject property is wrongfully encumbered
(see CPLR 3211[a]; RPAPL 1515; Jahan v U.S.
Bank N.A., 127 A.D.3d 926; Acocella v Bank of N.Y.
Mellon, 127 A.D.3d 891; Benson v Deutsche Bank Natl.
Trust, Inc., 109 A.D.3d 495; see also Ruiz v
Mortgage Elec. Registration Sys., Inc., 130 A.D.3d
1000). The plaintiffs' bare legal assertion that the
"trading" of the mortgage separate and apart from
the underlying note rendered the security interest null and
void is without merit (see Ruiz v Mortgage Elec.
Registration Sys., Inc., 130 A.D.3d at 1002). Insofar as
the plaintiffs, in effect, challenge the defendant's
standing to commence an action to foreclose the subject
mortgage, that contention is misplaced, as this is not an
action to foreclose a mortgage, and standing is not an issue
herein (see Jahan v U.S. Bank N.A., 127 A.D.3d at
927; Acocella v Bank of N.Y. Mellon, 127 A.D.3d at
extent, however, that the complaint alleges that the subject
promissory note "was satisfied, " we find that this
sufficiently states a cause of action under RPAPL article 15
(see e.g. Guccione v Estate of Guccione, 84 A.D.3d
the Supreme Court should have granted the defendant's
motion pursuant to CPLR 3211(a)(7) to the extent of
dismissing the plaintiff's sole cause of action, except
insofar as it is predicated on the allegation that the
subject promissory note has been satisfied.
the defendant also moved, in the alternative, for summary
judgment pursuant to CPLR 3212, it failed to demonstrate the
admissibility of the records relied upon by its affiant under
the business records exception to the hearsay rule
(see CPLR 4518[a]) and, therefore, failed to
establish, prima facie, that the promissory note remained
unpaid (see HSBC Mtge. Servs., Inc. v Royal, 142
A.D.3d 952). Accordingly, the defendant was not entitled to
summary judgment dismissing the only surviving portion of the
plaintiffs' cause of action, which was predicated on the
allegation that the subject promissory note has been
satisfied, regardless of the sufficiency of the papers
submitted in opposition (see U.S. Bank N.A. v
Madero, 125 A.D.3d 757).
branch of the defendant's motion which was for leave to
enter a default judgment on its counterclaim for sanctions
was properly denied. New York does not recognize an
independent cause of action for the imposition of sanctions
relating to frivolous actions (see Lewis, Brisbois,
Bisgaard & Smith, LLP v Law Firm of Howard Mann, 141
A.D.3d 574). Where a valid cause of action is not stated, the
pleading party moving for judgment on that cause of action is
not entitled to the requested relief, even on default
(see LIUS Group Intl. Endwell, LLC v HFS Intl.,
Inc.,92 A.D.3d 918, 920; Churc ...