Opinion
2492.
Decided December 16, 2003.
Order, Supreme Court, Bronx County (Bertram Katz, J.), entered June 13, 2003, which denied Delta Funding Corporation's motion for summary judgment and granted plaintiff's cross motion for summary judgment canceling the mortgage and purported deed and barring defendants from asserting any claims against the property, unanimously affirmed, without costs.
Michael D. Karnes, for Plaintiff-Respondent.
Steven E. Magid, for Defendant-Appellant.
Before: Nardelli, J.P., Saxe, Friedman, Marlow, Gonzalez, JJ.
The motion court properly determined that plaintiff was not estopped from denying the validity of the mortgage ( see Marden v. Dorthy, 160 N.Y. 39; Filowick v. Long, 201 A.D.2d 893), since she did not remain silent after learning of the fraudulent 1986 deed or otherwise engage in conduct that enabled defendant Dross to perpetrate the fraud on defendant Delta Funding. Contrary to Delta Funding's contention, any negligence on the part of plaintiff's prior counsel in failing to correct the records in the Register's Office after the 1988 action should not, under the circumstances, be imputed to her for purposes of estoppel ( see Feliberty v. Damon, 72 N.Y.2d 112, 117).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.