Opinion
CA 02-02706
May 2, 2003.
Appeal from a judgment (denominated order) of Supreme Court, Monroe County (Cornelius, J.), entered March 12, 2002, which, inter alia, granted the motion of defendant Bank of New York for summary judgment declaring that the mortgages on property located at 115-119 Lydia Street in Rochester assigned to defendant are superior to plaintiff's mortgage on that property.
ROBERT B. GITLIN, ROCHESTER, FOR PLAINTIFF-APPELLANT.
HISCOCK BARCLAY, LLP, BUFFALO (BRUCE S. ZEFTEL OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PINE, J.P., WISNER, KEHOE, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly granted the motion of the Bank of New York (defendant) for summary judgment, declaring that mortgages on property located at 115-119 Lydia Street in Rochester assigned to defendant are superior to plaintiff's mortgage on that property. Contrary to plaintiff's contention, defendant is not charged with constructive notice of plaintiff's previously recorded mortgage, which was incorrectly indexed as a result of the misspelling of the mortgagor's name on plaintiff's mortgage instrument ( see O'Neill v. Lola Realty Corp., 264 A.D. 60, 63). Because plaintiff's mortgage is recorded outside the relevant chain of title, defendant is not chargeable with constructive notice thereof ( see Doyle v. Lazzaro, 33 A.D.2d 142, 144, affd 33 N.Y.2d 981; see also Witter v. Taggart, 78 N.Y.2d 234, 238-239; Buffalo Academy of Sacred Heart v. Boehm Bros., 267 N.Y. 242, 250). Although the Monroe County Clerk's computerized index may be searched phonetically to reveal plaintiff's mortgage despite the misspelling, the existence of such a search capability "has no bearing on the dispositive issue of whether * * * [defendant is charged with] constructive notice of [plaintiff's] undischarged mortgage" ( First Natl. Bank of Scotia v. Riccio, 236 A.D.2d 697, 697-698), inasmuch as defendant is "not required to search outside [his] direct chain of title" ( Clements v. Schultz, 200 A.D.2d 11, 14; see Witter, 78 N.Y.2d at 239; Doyle, 33 A.D.2d at 144; Fekishazy v. Thomson, 204 A.D.2d 959, 960-961, appeal dismissed 84 N.Y.2d 844, lv denied 84 N.Y.2d 812).