Roth v. Porush

14 Citing cases

  1. Mallick v. Farfan

    66 A.D.3d 649 (N.Y. App. Div. 2009)   Cited 15 times

    "A person whose conveyance or encumbrance is recorded after the filing of [a] notice [of pendency] is bound by all proceedings taken in the action after such filing to the same extent as a party" (CPLR 6501). "The purpose of the notice of pendency is 'to afford constructive notice from the time of the filing so that any person who records a conveyance or encumbrance after that time becomes bound by all of the proceedings taken in the action'" ( 2386 Creston Ave. Realty, LLC v M-P-M Mgt. Corp., 58 AD3d 158, 161, quoting Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Sts. v Solow Bldg. Corp., 52 AD2d 533, 534; see Novastar Mtge., Inc. v Mendoza, 26 AD3d 479, 480; Matter of Jenkins v Stephenson, 293 AD2d 612, 614; Roth v Porush, 281 AD2d 612, 614; Green Point Sav. Bank v St. Hilaire, 267 AD2d 203; American Auto. Ins. Co. of St. Louis v Sansone, 206 AD2d 445, 446; Goldstein v Gold, 106 AD2d 100, 102).

  2. Shaw Funding, L.P. v. Boris

    2012 N.Y. Slip Op. 31061 (N.Y. Sup. Ct. 2012)

    The cases relied upon by the Neglias are factually distinguishable from the facts herein. In Roth v Porush (281 AD2d 612. 722 NYS2d 566 [2d Dept 2001]), a judgment creditor filed a notice of pendency and commenced the action to set aside a fraudulent conveyance of real property from the judgment debtor to his wife, who in turn sold the real property to third parties. The court found that there were facts which should have led the third-parties and their title insurance company to conduct further inquiry before purchasing the property, and found that the doctrine of equitable subrogation was inapplicable.

  3. Arbor Commercial Mortgage, LLC v. Associates at Palm, LLC

    95 A.D.3d 1147 (N.Y. App. Div. 2012)   Cited 14 times

    Accordingly, the Bank's constructive knowledge of the plaintiff's mortgage is not an absolute bar to application of the doctrine of equitable subrogation ( see King v. Pelkofski, 20 N.Y.2d 326, 282 N.Y.S.2d 753, 229 N.E.2d 435;Elwood v. Hoffman, 61 A.D.3d 1073, 876 N.Y.S.2d 538). Under the circumstances of this case, the Supreme Court should have denied that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the Bank, and granted that branch of the Bank's cross motion which was for leave to serve an amended answer asserting a counterclaim so as to seek lien priority pursuant to the doctrine of equitable subrogation. To the extent that our decisions in Bank One v. Mon Leang Mui, 38 A.D.3d 809, 835 N.Y.S.2d 585,Roth v. Porush, 281 A.D.2d 612, 722 N.Y.S.2d 566, and R.C.P.S. Assoc. v. Karam Devs., 238 A.D.2d 492, 656 N.Y.S.2d 666 provide contrary authority, they should not be followed. In light of our determination, the Bank's alternative contention has been rendered academic.

  4. Countrywide Home Loans Inc. v. Dombek

    68 A.D.3d 1041 (N.Y. App. Div. 2009)   Cited 4 times

    The proceeds of the appellants' mortgage were used to satisfy a prior and more senior purchase-money mortgage given by Dombek First National Bank of Arizona in 2004, which mortgage the plaintiff also held by virtue of an assignment. In this foreclosure action commenced by the plaintiff after Dombek defaulted under the July 2005 mortgage, the appellants contend that the doctrine of equitable subrogation applies so that their lien is to be given priority over the plaintiffs lien ( see Bank One v Mon Leang Mui, 38 AD3d 809, citing King v Pelkofski, 20 NY2d 326). Given the existence of triable issues of fact as to whether the appellants were on notice of the July 2005 mortgage at the time they executed their mortgage, the Supreme Court erred in granting those branches of the plaintiff's motion which were for summary judgment on the complaint and to strike the affirmative defense of equitable subrogation asserted in the answer ( see King v Pelkofski, 20 NY2d 326; Roth v Porush, 281 AD2d 612; cf. LaSalle Bank Natl. Assn. v Ally, 39 AD3d 597). [Prior Case History: 2008 NY Slip Op 3124(U).]

  5. 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.

  6. 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.

  7. LaSalle Bank National Ass'n v. Ally

    39 A.D.3d 597 (N.Y. App. Div. 2007)   Cited 83 times

    Accordingly, the Supreme Court should have granted that branch of Nationscredit's cross motion which was for summary judgment in its favor on its equitable subrogation cause of action in the sum of $108,046.20 ( see Federal Natl. Mtge. Assn. v Woodbury, 254 AD2d 182; Zeidel v Dunne, 215 AD2d 472, 473-474; see generally King v Pelkofski, 20 NY2d 326, 333-334; cf. Roth v Porush, 281 AD2d 612, 614; Pawling Sav. Bank v Hunt Props., 225 AD2d 678, 680).

  8. One v. Bank Minnesota

    38 A.D.3d 809 (N.Y. App. Div. 2007)   Cited 17 times

    The doctrine of equitable subrogation applies "where the funds of a mortgagee are used to satisfy the lien of an existing, known incumbrance when, unbeknown to the mortgagee, another lien on the property exists which is senior to his but junior to the one satisfied with his funds" ( King v Pelkofski, 20 NY2d 326, 333-334 [1967]). "In order to avoid the unjust enrichment of the intervening, unknown lienor, the mortgagee is entitled to be subrogated to the rights of the senior incumbrance" ( id.; see Roth v Porush, 281 AD2d 612, 614; Pawling Sav. Bank v Hunt Props., 225 AD2d 678, 680). Here, based on extensive documentary proof demonstrating that Mui drew a $76,892.

  9. Stanley Furniture Co., Inc. v. Starr, 2009 NY Slip Op 32680(U) (N.Y. Sup. Ct. 11/9/2009)

    2009 N.Y. Slip Op. 32680 (N.Y. Sup. Ct. 2009)

    In this case, the complete lack of supporting evidence regarding the defendants' explanation of the transfer in June of 2007 does not rebut the initial showing that the transfer was made with actual intent "to hinder, delay or defraud" the plaintiff creditor. See, Kreisler Borg Florman Gen. Const. Co., Inc. v Tower 56 LLC, 58 AD3d 694 (2d Dept 2009); Roth v Porush, 281 AD2d 612 (2d Dept. 2001); Dillon v Dean, 236 AD2d 360 (2d Dept. 1997); Spielvogel v Welborne, 175 AD2d 830 (2d Dept. 1991); see also, Joslinv Lopez, 309 AD2d 837 (2d Dept. 2003).

  10. Stanley Furniture Co., Inc. v. Starr

    2009 N.Y. Slip Op. 32680 (N.Y. Sup. Ct. 2009)

    In this case, the complete lack of supporting evidence regarding the defendants' explanation of the transfer in June of 2007 does not rebut the initial showing that the transfer was made with actual intent "to hinder, delay or defraud" the plaintiff creditor. See, Kreisler Borg Florman Gen. Const. Co., Inc. v Tower 56 LLC, 58 AD3d 694 (2d Dept 2009); Roth v Porush, 281 AD2d 612 (2d Dept. 2001); Dillon v Dean, 236 AD2d 360 (2d Dept. 1997); Spielvogel v Welborne, 175 AD2d 830 (2d Dept. 1991); see also, Joslin v Lopez, 309 AD2d 837 (2d Dept. 2003).