First National Bank v. Riccio

Mercure, J. Appeal from an order of the Supreme Court (Dawson, J.), entered December 12, 1995 in Schenectady County, which, inter alia, partially granted defendant’s motion for summary judgment. The parties each claim a first lien on real property located at 507 Saratoga Road in the Town of Glenville, Schenectady County, defendant as assignee of a mortgage recorded in the Schenectady County Clerk’s office on April 27, 1973 (hereinafter referred to as defendant’s mortgage) and plaintiff by virtue of a mortgage in its favor that was recorded on April 12, 1991 (hereinafter referred to as plaintiffs mortgage). It is undisputed that, at the time plaintiffs mortgage was recorded, an erroneous notation existed on the copy of defendant’s mortgage on file in the Clerk’s office, indicating that defendant’s mortgage had been discharged and referring to the precise book and page of the purported recorded discharge of mortgage. Not searching for the discharge at the indicated location (a review of that instrument would have indicated that it had nothing to do with plaintiffs mortgage) and despite the fact that her examination of the mortgagor index showed the mortgage to be open, the abstractor relied upon the erroneous notation on the recorded copy of the mortgage as evidence that the mortgage had been discharged of record. As correctly reasoned by Supreme Court, in determining the priority of the respective mortgages, we need give no consideration to the parties’ submissions concerning the title examination standards or practices prevailing in Schenectady County. To the contrary, such a consideration, although likely relevant to an inquiry concerning the liability of the County Clerk or the title examiner, has no bearing on the dispositive issue of [698] whether, at the time its mortgage was recorded, plaintiff had constructive notice of defendant’s undischarged mortgage. We agree with Supreme Court that the entries in the appropriate mortgagor and mortgagee indices, setting forth all required information concerning the mortgage to defendant’s assignor (see, Real Property Law § 316) and showing no discharge thereof, provided plaintiff with constructive notice of defendant’s lien (see, Real Property Law §§ 291, 316; Federal Natl. Mtge. Assn. v Levine-Rodriguez, 153 Misc 2d 8; cf., Mutual Life Ins. Co. v Dake, 87 NY 257, 264-265 [decided prior to and calling for the enactment of Real Property Law § 316]; Henrietta Bldg. Supplies v Rogers, 117 Misc 2d 843 [no constructive notice because of incorrect indexing]). Cardona, P. J., Casey, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed, with costs.