Roth v. Porush

3 Citing cases

  1. 2386 Creston Ave. v. M-P-M

    58 A.D.3d 158 (N.Y. App. Div. 2008)   Cited 54 times

    In that case, the plaintiff who filed the notice of pendency already had a recorded interest in the property, having recorded his mortgage, and the notice simply preserved an existing property right. Other cases cited by plaintiff are similarly distinguishable because, like Goldstein, they involved a plaintiff who already had an established interest in the property, or a defendant who was not a good faith purchaser for value ( Novastar Mtge., Inc. v Mendoza, 26 AD3d 479; Roth v Porush, 281 AD2d 612; Green Point Sav. Bank v St. Hilaire, 267 AD2d 203, lv denied 95 NY2d 778; Morrocoy Mar. v Altengarten, 120 AD2d 500 [specific performance available because defendant was not a good faith purchaser for value]; Stephens v Snitow, 95 AD2d 806, lv denied 60 NY2d 557 ; United States v McCombs, 30 F3d 310 [2d Cir 1994]; In re 19 Ct, St. Assoc., LLC, 190 BR 983 [SD NY 1996]; Nitchie Barrett Realty Corp. v Biderman, 704 F Supp 369 [SD NY 1988]). In the case at bar, specific performance was an impossible remedy since M-P-M did not have title to the subject property at the time the action was commenced, and, under New York law as stated above, a contract vendee such as plaintiff does not, by virtue of the filing of a notice of pendency, create an interest in real property superior to a subsequent good faith purchaser from the same vendor who records a contract or conveyance.

  2. CDR v. Euro-American

    43 A.D.3d 45 (N.Y. App. Div. 2007)   Cited 28 times

    The defense of waiver was also barred by the terms of the mortgages ( see Excel Graphics Tech. v CFG/AGSCB 75 Ninth Ave., 1 AD3d 65, lv dismissed 2 NY3d 794). Atlantic Bank's counterclaim for equitable subrogation and priority of lien, based on its payment of tax liens, was properly dismissed in light of its knowledge of plaintiff's mortgages ( see Roth v Porush, 281 AD2d 612, 614) and its failure to inquire in the face of the borrower's assertion that the mortgage was unenforceable. After due consideration, I also find appellants' other contentions meritless.

  3. Lopez v. Bisono

    2008 N.Y. Slip Op. 30342 (N.Y. Sup. Ct. 2008)

    Additionally, defendants Ramirez and First Continental were aware that a mortgage existed on the property which was in the name of plaintiff, as opposed to defendant Bisono, and that although the GST and Bisono deeds were dated on the same date, the Bisono deed was not recorded until over six years later. Again, a question of fact exists as to whether this unusual circumstance, regarding the recording of the GST and Bisono deeds, should have put defendants Ramirez and First Continental on notice that there might be a cloud on the record title (see Roth v Porush, 281 AD2d 612; R.C.P.S. Associates v Karam Developers, 238 AD2d 492). Summary judgment dismissing the amended complaint as against defendants Ramirez and First Continental therefore is unwarranted (see Zuckerman v City of New York, 49 NY2d 557,supra).