V & D Realty USA Corp. v. Mitso Group, Inc.

In an action to foreclose a mortgage on real property, the defendants R.G. Capital Corporation, Nor star Bank, Fleet National Bank, and Sunrise Charter Management Corp. appeal from so much of an order and judgment (one paper) of the Supreme Court, Kings County (Golden, J.), dated February 13, 1996, as granted the plaintiff’s cross motion for partial summary judgment dismissing the appellants’ affirmative defenses and counterclaims "as they relate to the question of priority” of various mortgages. Ordered that the order and judgment is reversed insofar as appealed from, with costs, and the cross motion for partial summary judgment is denied. An error in indexing a mortgage prevents a record of that instrument from constituting constructive notice "as to the property in any block not duly designated” at the time the mortgage is filed for the period that the error remains uncorrected (County Law § 919 [1] [j]; see, Baccari v De Santi, 70 AD2d 198, 202; Federal Natl. Mtge. Assn. v Levine-Rodriguez, 153 Misc 2d 8). Under the circumstances, material questions of fact exist as to whether the prior mortgage held by the plaintiff was properly indexed as against the subject parcel and whether the appellants were thereby properly put on constructive notice of the mortgage. [563] The appellants’ remaining contentions are without merit. Copertino, J. P., Sullivan, Altman and Florio, JJ., concur.