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Supreme Court, Appellate Division, First Department, New York.

BANK OF AMERICA, N.A., Plaintiff–Respondent, v. Kenneth ADOLPHUS, Defendant–Appellant.


Decided: November 19, 2019

Friedman, J.P., Renwick, Richter, Mazzarelli, Oing, JJ. Solomon Zabrowsky, New York, for appellant. Fidelity National Law Group, New York (Terence D. Watson of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about July 20, 2018, which granted plaintiff's motion for summary judgment declaring that it holds a valid and enforceable mortgage lien on the subject property in the original principle amount of $360,000, unanimously affirmed, without costs.

Plaintiff sufficiently established the chain of title to the subject premises through its affidavits and records from the Automated City Register Information System (see Fan–Dorf Props., Inc. v. Classic Brownstones Unlimited, LLC, 103 A.D.3d 589, 590, 960 N.Y.S.2d 99 [1st Dept. 2013]).

Defendant failed to raise an issue of fact as to whether plaintiff was on notice of any alleged fraud in the prior conveyances of the property.  Given that defendant had sought no discovery prior to the note of issue and could not articulate a basis for why relevant evidence existed in support of any defense, he was not entitled to further discovery (see Smith v. Andre, 43 A.D.3d 770, 771, 843 N.Y.S.2d 209 [1st Dept. 2007]).

Furthermore, since there was no issue of fact as to plaintiff's notice of fraudulent inducement, defendant was required to raise an issue of fact as to fraud in the factum with regard to the conveyances at issue.  This involves forgery, or fraud with regard to the effect of the actual document being signed (see Carney v. Gil, 125 A.D.3d 559, 559–560, 6 N.Y.S.3d 3 [1st Dept. 2015];  Solar Line, Universal Great Bhd., Inc. v. Prado, 100 A.D.3d 862, 863–864, 955 N.Y.S.2d 96 [2d Dept. 2012];  Wells Fargo Bank, NA v. Edsall, 22 Misc.3d 1113[A], 2009 N.Y. Slip Op. 50112[U], 2009 WL 175029 [Sup. Ct., Suffolk County 2009]).  Here, there was no allegation of any such fraud in the factum.

Plaintiff's claims were not barred by res judicata.  Plaintiff was not a party to the prior proceedings and as such, did not have a full and fair opportunity to litigate the claims asserted in defendant's prior action (compare Marx v. Mack Affiliates, 265 A.D.2d 202, 696 N.Y.S.2d 436 [1st Dept. 1999]).