Opinion
938 CA 19–00382
10-04-2019
SRP 2012-4, LLC, Plaintiff-Appellant, v. Cynthia L. CHAN, Also Known as Cynthia Chan, Catherine Amdur, Defendants–Respondents, John Doe # 1, et al., Defendants.
RICHLAND & FALKOWSKI, PLLC, ASTORIA (DANIEL H. RICHLAND OF COUNSEL), FOR PLAINTIFF–APPELLANT. WESTERN NEW YORK LAW CENTER, INC., BUFFALO (KEISHA A. WILLIAMS OF COUNSEL), FOR DEFENDANT–RESPONDENT CYNTHIA L. CHAN, ALSO KNOWN AS CYNTHIA CHAN. FIDELITY NATIONAL LAW GROUP, NEW YORK CITY (VANESSA R. ELLIOTT OF COUNSEL), FOR DEFENDANT–RESPONDENT CATHERINE AMDUR.
RICHLAND & FALKOWSKI, PLLC, ASTORIA (DANIEL H. RICHLAND OF COUNSEL), FOR PLAINTIFF–APPELLANT.
WESTERN NEW YORK LAW CENTER, INC., BUFFALO (KEISHA A. WILLIAMS OF COUNSEL), FOR DEFENDANT–RESPONDENT CYNTHIA L. CHAN, ALSO KNOWN AS CYNTHIA CHAN.
FIDELITY NATIONAL LAW GROUP, NEW YORK CITY (VANESSA R. ELLIOTT OF COUNSEL), FOR DEFENDANT–RESPONDENT CATHERINE AMDUR.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this foreclosure action against, inter alia, defendants Cynthia L. Chan and Catherine Amdur. Chan purchased certain real property and, in 1998, executed a note secured by a mortgage on the property. The note and mortgage were eventually assigned to plaintiff in 2016. Prior to that assignment, Chan commenced an action in 2013 against the then-current holder of the note and mortgage, Onyx Capital, LLC (Onyx), seeking to discharge the mortgage on the ground that the applicable statute of limitations for a foreclosure action had passed. Chan obtained a default judgment against Onyx, and the mortgage was cancelled and discharged. Chan then sold the property to Amdur in 2015. The title abstract listed the mortgage as cancelled and discharged. After receiving assignment of the note and mortgage from Onyx, plaintiff moved to vacate the default judgment against Onyx on the ground of lack of personal jurisdiction. Supreme Court (Nowak, Jr., J.) denied the motion, but we reversed the court's order, granted the motion, vacated the default judgment, and dismissed Chan's complaint ( Chan v. Onyx Capital, LLC, 156 A.D.3d 1361, 67 N.Y.S.3d 748 [4th Dept. 2017], lv denied 31 N.Y.3d 903, 2018 WL 1597453 [2018] ). Apparently recognizing that it could not recover on Chan's personal obligation under the note because of her discharge in bankruptcy (see generally Citimortgage, Inc. v. Chouen, 154 A.D.3d 914, 916, 63 N.Y.S.3d 443 [2d Dept. 2017] ), plaintiff elected instead to commence this present foreclosure action against Chan and Amdur (see generally Aurora Loan Servs., LLC v. Lopa, 88 A.D.3d 929, 930, 932 N.Y.S.2d 496 [2d Dept. 2011] ; Wyoming County Bank & Trust Co. v. Kiley, 75 A.D.2d 477, 480, 430 N.Y.S.2d 900 [4th Dept. 1980] ). Plaintiff moved for summary judgment, and Chan cross-moved for summary judgment dismissing the complaint. Supreme Court (Sedita, III, J.) denied plaintiff's motion, granted Chan's cross motion, sua sponte granted summary judgment in favor of Amdur on her counterclaim to quiet title to her interest in the property, and dismissed the complaint. We affirm. Contrary to plaintiff's contention, the foreclosure action was properly dismissed because Amdur was a bona fide purchaser for value (see generally U.S. Bank Natl. Assn. v. Vanvliet, 24 A.D.3d 906, 909, 805 N.Y.S.2d 459 [3d Dept. 2005] ). A bona fide purchaser is "one who purchases real property in good faith, for valuable consideration, without actual or record notice of another party's adverse interests in the property and is the first to record the deed or conveyance" ( Panther Mtn. Water Park, Inc. v. County of Essex, 40 A.D.3d 1336, 1338, 836 N.Y.S.2d 374 [3d Dept. 2007] ). There is no dispute that Amdur purchased the property for valuable consideration, and the evidence submitted by Amdur established that she had notice that the mortgage at issue had been cancelled and discharged by the default judgment. We reject plaintiff's contention that, because the default judgment was later vacated, it could not be relied upon by Amdur when she purchased the property. "It is elementary that a final judgment or order represents a valid and conclusive adjudication of the parties' substantive rights, unless and until it is overturned on appeal" ( Da Silva v. Musso, 76 N.Y.2d 436, 440, 560 N.Y.S.2d 109, 559 N.E.2d 1268 [1990] ). Amdur "justifiably relied on an order cancelling [and discharging the mortgage], even though it had been entered on default" ( George v. Grand Bay Assoc. Enter. Inc., 45 A.D.3d 451, 452, 846 N.Y.S.2d 136 [1st Dept. 2007] ).