Summary
in Katz v. East-Ville Realty Co., (249 AD2d 243, 243), a "[p]laintiff's attempt to foreclose upon a mortgage in which he had no legal or equitable interest [is] without foundation in law or fact" (see Kluge v. Fugazy, 145 AD2d 537). Hence, Wells Fargo's attempt to foreclose upon the subject mortgage must be denied, the complaint dismissed, and McNee's cross-motion(s) to dismiss for lack of standing pursuant to CPLR 3211(a)(3) granted.
Summary of this case from Wells Fargo Bank, N.A. v. McNeeOpinion
April 30, 1998
Appeal from the Supreme Court, New York County (Richard Lowe, III, J.).
Plaintiff's attempt to foreclose upon a mortgage in which he had no legal or equitable interest was without foundation in law or fact, and the IAS Court's dismissal of the foreclosure action pursuant to CPLR 3211 (a) (1) was, accordingly, appropriate ( see, Kluge v. Fugazy, 145 A.D.2d 537). Dismissal was also warranted by reason of plaintiff's failure to join the party to whom he assigned the mortgage and who, he concedes, possesses a security interest in the property ( see, CPLR 3211 [a] [10]).
We see no reason to disturb the court's imposition of sanctions upon plaintiff, an attorney, and his counsel, given the patently frivolous nature of plaintiff's foreclosure claim. Absent a conspicuous modification of existing law, the claim was clearly not viable ( see, 22 NYCRR 130-1.1 [c] [1]).
Concur — Sullivan, J.P., Ellerin, Rubin, Williams and Andrias, JJ.