Roth v. Porush

26 Citing cases

  1. Joslin v. Lopez

    309 A.D.2d 837 (N.Y. App. Div. 2003)   Cited 106 times
    Noting that burden of establishing lack of fair consideration is on party challenging conveyance

    Here, although Susan Lopez sold the Westbury residence to third parties, the record establishes that the sale took place after the plaintiff had filed a notice of pendency against the property. Accordingly, the third-party purchasers are bound by the judgment in this action which voids Frank Lopez' transfer of his interest in the property to his wife ( see CPLR 6405), and the sale does not cut off the plaintiff's lien against Frank Lopez' interest in the property ( see Roth v. Porush, 281 A.D.2d 612). Under these circumstances, the plaintiff is not entitled to a substitute remedy.

  2. 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).

  3. 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.

  4. Novastar Mortgage, Inc. v. Mendoza

    26 A.D.3d 479 (N.Y. App. Div. 2006)   Cited 45 times

    The statute further provides that a person whose conveyance 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 if he or she were a party ( see CPLR 6501; Green Point Sav. Bank v. St. Hilaire, supra; American Auto. Ins. Co. of St. Louis v. Sansone, 206 AD2d 445; Goldstein v. Gold, supra). Thus, in order to cut off an unrecorded prior lien such as a mortgage, "the purchaser must have no knowledge of the outstanding lien and win the race to the recording office" ( Goldstein v. Gold, supra at 101-102; see Matter of Jenkins v. Stephenson, 293 AD2d 612; Roth v. Porush, 281 AD2d 612). Here, the record demonstrates that the deed conveying a one-half interest in the subject premises to the nonparty Francisco Mendoza was recorded approximately one month after the plaintiff commenced this foreclosure action and filed a notice of pendency.

  5. 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.

  6. 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.

  7. In the Matter of Jenkins v. Stephenson

    293 A.D.2d 612 (N.Y. App. Div. 2002)   Cited 17 times
    Finding after evidentiary hearing no-consideration transfer was void where individual had been found to be incapacitated at a later date

    "A purchaser is charged with constructive notice of litigation if he [or she] fails to record the deed prior to the filing of the notice of pendency" (Goldstein v. Gold, supra, at 102). Legend failed to record the deed prior to the filing of the notice of pendency, and, therefore, is bound to the same extent as Stephenson by the judgment determining that Sallie Mae Jenkins did not have the capacity to deed the property (see, CPLR 6501; Roth v. Porush, 281 A.D.2d 612, 614; American Auto. Ins. Co. of St. Louis v. Sansone, 206 A.D.2d 445; Goldstein v. Gold, supra; Morrocoy Marina v. Altengarten, 120 A.D.2d 500). GOLDSTEIN, J.P., McGINITY, H. MILLER and TOWNES, JJ., concur.

  8. Elwood v. Hoffman

    61 A.D.3d 1073 (N.Y. App. Div. 2009)   Cited 16 times

    Based upon the Court of Appeals' decision in King v Pelkofski ( 20 NY2d at 333-334), the presence of constructive notice does not render the doctrine of equitable subrogation inapplicable where, as here, the notice of pendency, was "unbeknown" to Delta at the time ( see United States v Baran, 996 F2d at 28). We decline to follow those cases holding otherwise inasmuch as they depart from the Court of Appeals' decision in King v Pelkofski (supra; see e.g. Bank One vMon Leang Mui, 38 AD3d 809; Roth v Porush, 281 AD2d 612; R.C.P.S. Assoc., v Karam Devs., 238 AD2d 492). Notably, plaintiff would be unjustly enriched if the doctrine of equitable subrogation were not applied in the case at hand.

  9. 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).

  10. 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.