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Dolphin v. Marocik

Appellate Division of the Supreme Court of New York, Second Department
Dec 18, 1995
222 A.D.2d 549 (N.Y. App. Div. 1995)

Summary

holding a mortgage invalid for lack of consideration

Summary of this case from Universitas Educ., LLC v. Nova Grp., Inc.

Opinion

December 18, 1995

Appeal from the Supreme Court, Queens County (Turret, J.).


Ordered that the cross-appeal is dismissed for failure to perfect the same in accordance with the rules of this Court ( 22 NYCRR 670.8 [c], [e]); and it is further,

Ordered that the order and judgment is affirmed; and it is further,

Ordered that Donald Jaffe, Inc., is awarded one bill of costs.

Michael Dolphin and Donald Jaffe, Inc. (hereinafter Jaffe), commenced separate actions to foreclose separate mortgages held by them on the same property. This appeal by Dolphin is from an order and judgment (one paper) which held that Jaffe's prior unrecorded mortgage took priority over Dolphin's subsequent, but first to be recorded, mortgage because Dolphin had actual or constructive notice of the existence of Jaffe's mortgage at the time Dolphin took his mortgage. The court also found that Dolphin's mortgage was invalid due to lack of consideration or due to inadequate consideration.

While we disagree with the trial court's conclusion that Dolphin had actual or constructive notice of the prior, unrecorded mortgage held by Jaffe at the time Dolphin took his mortgage, we find that Dolphin failed to establish that he paid valuable consideration for his mortgage (see, Hood v Webster, 271 N.Y. 57; Barrett v Littles, 201 A.D.2d 444; Berger v Polizzotto, 148 A.D.2d 651). While Dolphin testified as to several payments he claimed to have made, as well as to mortgages, liens, and judgments he claimed to have assumed in exchange for the mortgage in question, he failed to submit sufficient documentation of these claims. On the other hand, Jaffe submitted proof of his $150,000 loan, the proceeds of which were used to satisfy liens and other mortgages encumbering the subject property. Rosenblatt, J.P., Copertino, Friedmann and Krausman, JJ., concur.


Summaries of

Dolphin v. Marocik

Appellate Division of the Supreme Court of New York, Second Department
Dec 18, 1995
222 A.D.2d 549 (N.Y. App. Div. 1995)

holding a mortgage invalid for lack of consideration

Summary of this case from Universitas Educ., LLC v. Nova Grp., Inc.
Case details for

Dolphin v. Marocik

Case Details

Full title:MICHAEL DOLPHIN, Appellant-Respondent, v. JANOS MAROCIK et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 18, 1995

Citations

222 A.D.2d 549 (N.Y. App. Div. 1995)
635 N.Y.S.2d 84

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