Opinion
2017–01171 Index No. 8188/15
03-20-2019
Melanie WOHL, etc., Respondent, v. Paul FRANKEL, et al., Appellants, et al., Defendant.
Donald M. Nussbaum, New York, NY, for appellants. Biolsi Law Group, P.C., New York, N.Y. (Steven Alexander Biolsi and Juan Paolo F. Dizon of counsel), for respondent.
Donald M. Nussbaum, New York, NY, for appellants.
Biolsi Law Group, P.C., New York, N.Y. (Steven Alexander Biolsi and Juan Paolo F. Dizon of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action, inter alia, for a judgment declaring that certain deeds are void and that the plaintiff is the sole owner of the subject real property, the defendants Paul Frankel and Orlo Holdings N.Y., LLC, appeal from an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated October 31, 2016. The order, insofar as appealed from, denied that branch of the defendants' motion which was for summary judgment, in effect, making certain declarations in their favor.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Real Property Law § 320 provides, in pertinent part, that a "deed conveying real property, which, by any other written instrument, appears to be intended only as a security in the nature of a mortgage, although an absolute conveyance in terms, must be considered a mortgage." "In determining whether a deed was intended as security, ‘examination may be made not only of the deed and a written agreement executed at the same time, but also [of] oral testimony bearing on the intent of the parties and to a consideration [of] the surrounding circumstances and acts of the parties’ " ( Bouffard v. Befese, LLC, 111 A.D.3d 866, 868, 976 N.Y.S.2d 510, quoting Henley v. Foreclosure Sales, Inc., 39 A.D.3d 470, 470, 835 N.Y.S.2d 599 [internal quotation marks omitted]; see Patmos Fifth Real Estate Inc. v. Mazl Bldg., LLC, 124 A.D.3d 422, 2 N.Y.S.3d 83 ; Corcillo v. Martut, Inc., 58 A.D.2d 617, 395 N.Y.S.2d 696, affd 45 N.Y.2d 878, 410 N.Y.S.2d 811, 383 N.E.2d 113 ). Thus, " ‘a court of equity will treat a deed, absolute in form, as a mortgage, when it is executed as a security for a loan of money. That court looks beyond the terms of the instrument to the real transaction; and when that is shown to be one of security, and not of sale, it will give effect to the actual contract of the parties’ " ( Basile v. Erhal Holding Corp., 148 A.D.2d 484, 485, 538 N.Y.S.2d 831, quoting Peugh v. Davis, 96 U.S. 332, 336, 24 L.Ed. 775 ).
In support of that branch of their motion which was for summary judgment, in effect, making certain declarations in their favor, the appellants submitted a stipulation settling a related mortgage foreclosure action. Inasmuch as the stipulation raised a triable issue of fact as to whether a certain deed in favor of the appellants was "intended only as a security in the nature of a mortgage" ( Real Property Law § 320 ), and not as an absolute conveyance, we agree with the Supreme Court's denial of that branch of the motion (see Southwell v. Middleton, 67 A.D.3d 666, 890 N.Y.S.2d 57 ; Henley v. Foreclosure Sales, Inc., 39 A.D.3d at 471, 835 N.Y.S.2d 599 ; Gioia v. Gioia, 234 A.D.2d 588, 652 N.Y.S.2d 63 ; Basile v. Erhal Holding Corp., 148 A.D.2d at 485–486, 538 N.Y.S.2d 831 ).
The appellants' remaining contentions are without merit.
LEVENTHAL, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.