Opinion
2011-05-3
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Plaintiff–Appellant, v. Sonia GORDON, etc., Defendant–Respondent, David Golding, et al., Defendants.
Moss & Kalish, PLLC, New York (David B. Gelfarb of counsel), for appellant. Howard L. Sherman, Ossining, for respondent.
Moss & Kalish, PLLC, New York (David B. Gelfarb of counsel), for appellant. Howard L. Sherman, Ossining, for respondent.
SAXE, J.P., FRIEDMAN, FREEDMAN, RICHTER, JJ.
Order, Supreme Court, Bronx County (Lucy Billings, J.), entered on or about April 29, 2010, which denied plaintiff's motion for summary judgment dismissing defendant Gordon's defenses and counterclaim of fraud, unanimously reversed, on the law, without costs, and the motion granted.
By submitting proof of the existence of a mortgage and of default, plaintiff, as assignee of the lender, First Franklin Mortgage Loan Trust, established a prima facie case for foreclosure ( Bank Leumi Trust Co. of N.Y. v. Lightning Park, 215 A.D.2d 246, 626 N.Y.S.2d 202 [1995];Chemical Bank v. Broadway 55–56th St. Assoc., 220 A.D.2d 308, 632 N.Y.S.2d 553 [1995] ). In opposition, Gordon failed to raise a triable issue of fact as to plaintiff's knowledge of or involvement in fraud ( see Citidress II v. 207 Second Ave. Realty Corp., 21 A.D.3d 774, 776–777, 802 N.Y.S.2d 393 [2005];Sinardi v. Rivera, 261 A.D.2d 388, 689 N.Y.S.2d 236 [1999] ). Gordon does not allege that she had any contact with First Franklin, that First Franklin made any misrepresentation to her, or that she justifiably relied upon any misrepresentation by First Franklin ( see Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421, 646 N.Y.S.2d 76, 668 N.E.2d 1370 [1996];Peach Parking Corp. v. 346 W. 40th St., LLC, 42 A.D.3d 82, 87, 835 N.Y.S.2d 172 [2007] ).
In addition, Gordon failed to establish any basis for a fact-finder to conclude that the brokers and mortgage company she alleges conspired against her were acting as First Franklin's agent in connection with the transaction. In any event, the brokers and mortgage company's commission of fraud could not be imputed to First Franklin because the alleged fraud required that the fact that Gordon was the true borrower be withheld from First Franklin ( see G.E. Capital Mtge. Servs. v. Holbrooks, 245 A.D.2d 170, 171, 666 N.Y.S.2d 175 [1997] ). Nor is there evidence to support a finding that First Franklin had constructive knowledge of any fraud or had a duty to make inquiry of the circumstances of the sale of the property and the issuance of the mortgage ( see e.g. Thomas v. LaSalle Bank N.A., 79 A.D.3d 1015, 913 N.Y.S.2d 742 [2010] ).