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CANCELLATION AND DISCHARGE OF A MORTGAGE AND VACATION OF A NOTICE OF PENDENCY MUST BE SOUGHT BY AN ACTION OR A COUNTERCLAIM PURSUANT TO RPAPL 1501, NOT, AS HERE, BY A CROSS-MOTION; THE ISSUE WAS PROPERLY RAISED FOR THE FIRST TIME ON APPEAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant’s cross-motion to cancel and discharge the mortgage pursuant to RPAPL 1501(4) should not have been granted because that relief must be sought in an action or counterclaim, not by motion. The issue was properly raised for the first time on appeal:

Supreme Court should not have granted that branch of the cross motion which was pursuant to RPAPL 1501(4) to cancel and discharge of record the mortgage and vacate the notice of pendency, since relief pursuant to RPAPL 1501(4) must be sought in an action or counterclaim and not by motion … . Although the plaintiff raises this issue for the first time on appeal, it involves a question of law that appears on the face of the record and could not have been avoided if brought to the attention of the Supreme Court … . U.S. Bank N.A. v O’Rourke, 2022 NY Slip Op 05558, Second Dept 10-5-22

Practice Point: Cancellation and discharge of a mortgage and vacation of a notice of pendency pursuant to RPAPL 1501(4) must be sought by an action or a counterclaim, not, as in this case, by a cross-motion. The issue may be raised for the first time on appeal because it is a matter of law and could not have been avoided had it been raised in Supreme Court.

 

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ALTHOUGH IT MAY BE PLED IN THE ALTERNATIVE, A QUANTUM MERUIT CAUSE OF ACTION... THE BANK DID NOT DEMONSTRATE THE NOTICE OF DEFAULT COMPLIED WITH THE REQUIREMENTS...