Hazim v Dross
2003 NY Slip Op 19570 [2 AD3d 268]
December 16, 2003
Appellate Division, First Department
As corrected through
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 25, 2004


Karina Hazim, Respondent,
v
Albert Dross et al., Defendants, and Delta Funding Corporation, Appellant.

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 [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 plaintiff's 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.