Opinion
March 20, 1972
Appeal from an order of the Supreme Court at Special Term, entered July 29, 1971 in Greene County, which granted a motion for summary judgment dismissing the complaint. Appellants have owned and resided in the subject premises since 1953. They became in arrears on their mortgage and, by warranty deed dated February 5, 1960, conveyed the premises to defendant Ham. It was agreed that Ham would pay the amounts due as well as future mortgage, tax and insurance payments, that appellants would reimburse him for such payments and that he would convey the property back to appellants when the mortgage was paid. On October 10, 1969 Ham, by warranty deed, conveyed the property to respondents Louis Leporati and Gina Leporati for the sum of $7,000. The Leporatis then instituted summary proceedings to remove appellants from the property. Appellants thereafter instituted this action seeking to set aside the two deeds and to have the 1960 deed declared an equitable mortgage. The summary proceeding has been stayed. Special Term, concluding that the action had no merit, granted respondents' motion for summary judgment and dismissed the complaint. There is an issue whether the Leporatis were bona fide purchasers without knowledge of the true status of the instrument. The complaint states that the Leporatis, neighbors of appellants for many years, at the time of the conveyance "knew, should have known and were put on notice that plaintiffs were the owners" of the property. The affidavits in support of the motion and the testimony at the examinations before trial disclose that an issue of fact exists on this question. The granting of the motion for summary judgment was therefore precluded. Order reversed, on the law and the facts, and respondents' motion for summary judgment denied, with costs. Herlihy, P.J., Staley, Jr., Greenblott, Cooke and Reynolds, JJ., concur.