Hazim v. Dross

Order, Supreme Court, Bronx County (Bertram Katz, J), entered June 13, 2003, which denied Delta Funding Corporation’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment canceling the mortgage and purported deed and barring defendants from asserting any claims against the property, unanimously affirmed, without costs.

The motion court properly determined that plaintiff was not estopped from denying the validity of the mortgage (see Marden v Dorthy, 160 NY 39 [1899]; Filowick v Long, 201 AD2d 893 *269[1994]), since she did not remain silent after learning of the fraudulent 1986 deed or otherwise engage in conduct that enabled defendant Dross to perpetrate the fraud on defendant Delta Funding. Contrary to Delta Funding’s contention, any negligence on the part of plaintiffs prior counsel in failing to correct the records in the Register’s Office after the 1988 action should not, under the circumstances, be imputed to her for purposes of estoppel (see Feliberty v Damon, 72 NY2d 112, 117 [1988]). Concur—Nardelli, J.P., Saxe, Friedman, Marlow and Gonzalez, JJ.