Upon the foregoing papers, defendants Mortgage Electronic Registration Systems, Inc. as nominee of EverHome Mortgage Company as assignee of BNY Mortgage Company, LLC (hereinafter "MERS"), Jousiph Al-Kadeh and Lillian Lati move for an order 1) pursuant to CPLR 3212, granting summary judgment dismissing the complaint, 2) vacating the notice of pendency, 3) declaring that Al-Kadeh and Lati are the rightful fee owners of the subject property and that MERS is the holder of a priority mortgage encumbering the property, and 4) pursuant to CPLR 3211(a)(7) dismissing the complaint as against MERS for failing to state a cause of action. Defendant David Safenia cross-moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint as against him. Pro se plaintiff Joseph Marino moves for an order declaring him to be a one-third owner of the [*2]subject premises and for damages "in the thousands" against Al-Kadeh and Lati for "robbing" and "terrorizing" him.

Joseph Marino commenced this action pursuant to article 15 of the Real Property Actions and Proceedings Law to compel determination of claims to the subject property at 2234 West Street in Brooklyn. By deed dated June 28, 1973, siblings Joseph Marino, Anselmo Marino and Maria Marino Termini became owners of the property as joint tenants each holding a one-third interest. This deed was recorded on June 29, 1973. By deed dated November 8, 1973, Joseph Marino, Anselmo Marino and Maria Marino Termini conveyed a one-fourth interest in the property to their mother, Anna Maria Marino. This deed was recorded on November 9, 1973. Anna Maria Marino died in 1986, at which time Joseph Marino, Anselmo Marino and Maria Marino Termini, her only heirs, succeeded to her one-fourth interest in equal shares. Anselmo Marino died on November 24, 1997 and his children, Ann Marie Marino and Joseph Louis Marino, his residuary legatees and the co-executors of his estate pursuant to his Last Will and Testament, succeeded to his share of the property. On August 2, 2001, Ann Marie Marino and "Joseph Marino" each gave a durable general power of attorney to Guy G. Giuliano. By deed dated October 23, 2001, Marie Marino Termini, Joseph Marino, Joseph Louis Marino and Ann Marie Marino conveyed the property to Safenia pursuant to a partition order. This deed, recorded on March 12, 2002, was signed by Marie Marino Termini and Guy G. Giuliano on behalf of "Joseph Marino" and Ann Marie Marino as attorney-in-fact pursuant to the durable general powers of attorney. By deed dated June 4, 2002 and recorded July 15, 2002, Safenia conveyed the property to Al-Kadeh and Lati. Pursuant to this transaction, Al-Kadeh and Lati executed a mortgage in the amount of $208,000 in favor of BNY Mortgage Company, LLC. This mortgage, recorded July 15, 2002, is currently held by MERS as nominee for BNY's assignee, EverHome Mortgage Company.

In his complaint, Joseph Marino alleges in essence that he never knowingly transferred his one-forth interest in the property to Safenia. Specifically, Joseph Marino maintains that he never signed the August 2, 2002 power of attorney appointing Guy G. Giuliano as his attorney in fact and that, on information and belief, the "Joseph Marino" designated in this power of attorney was actually Joseph Louis Marino.

The transfer of the property to Safenia was the result of a partition action brought by Marie Marino Termini, Joseph Louis Marino and Ann Marie Marino (hereinafter the "partition plaintiffs"), against Joseph Marino and the Estate of Anna Maria Marino (Kings County Index No. 29191/99). According to the documentation submitted by defendants, on August 30, 1999 Joseph Marino was personally served with the partition summons and complaint. Joseph Marino did not appear in the action by counsel, but rather submitted a hand-written pro se response to the court. The partition plaintiffs thereafter moved for the appointment of a referee. The notice [*3]of motion was personally served on Joseph Marino, who submitted no opposition by the return date. By order dated November 12, 1999 (Hon. Lawrence Knipel, J.), the partition plaintiffs' motion was granted, and Michael Applebaum, Esq. was appointed as referee.

On March 9, 2000, a referee's hearing was conducted. At the hearing, Mr. Applebaum stated for the record that Joseph Marino was notified of the hearing by certified mail on January 13, 2000, and responded by ex parte correspondence. Mr. Applebaum further stated that on March 8, 2000 he notified Joseph Marino by telegram that if he wished to express his opposition to the partition plaintiffs' application to sell the property, then he must attend the hearing on March 9, 2000. Joseph Marino did not appear at the referee's hearing on March 9, 2000, and in his report issued on April 17, 2000 Mr. Applebaum reiterated what he declared at the hearing:

"Inasmuch as [Joseph Marino] is presently residing in the

house, I felt it appropriate, despite his defaults, to hold a hearing

and afford him a final opportunity to present his opposition, if any,

to the plaintiffs' request for an Order directing the sale of the house.

Plaintiff's counsel agreed that this procedure was fair and reasonable

in the circumstances. A notice of hearing was sent to the attorney

for plaintiffs and to [Joseph Marino] by certified mail, return receipt

requested, on January 13, 2000, scheduling a hearing for March 9, 2000.

The return receipts established that the notices were received by the

respective addressees.

On March 8, 2000, the undersigned received a lengthy ex parte

letter from defendant Joseph Marino a copy of which is hereto attached.

This was his first and only communication. I immediately sent

[Joseph Marino] a telegram advising him that his opposition to

plaintiffs' application could only be expressed through attendance

at the hearing.

Defendant Joseph Marino, nevertheless, failed to attend the

hearing."

On May 9, 2000, the partition plaintiffs moved to confirm the referee's report and for an order directing the entry of an interlocutory judgment directing a judicial sale of the premises. Joseph Marino was served with the notice of motion. The motion for confirmation of the referee's report and an interlocutory judgment directing the sale of the property was granted by Justice Knipel by order dated June 23, 2000. The property was thereafter sold to Safenia, who then sold it to current owners Al-[*4]Kadeh and Lati. The June 23, 2000 order was never appealed.

"The equitable doctrine of collateral estoppel is grounded in the facts and realities of a particular litigation, rather than rigid rules. Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party or those in privity" (Buechel v Bain, 97 NY2d 295, 303 [2001]). "Two requirements must be met before collateral estoppel can be invoked. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling" (id., at 303-304).

The prior partition action dealt with precisely the same issue which Joseph Marino seeks to address in the instant RPAPL article 15 action, to wit, his maintaining an interest in the subject property. This issue was fully resolved in the partition action, in which Joseph Marino had ample opportunity to formally appear and argue his position. While Joseph Marino may have never wished or intended to surrender his interest, his failure to formally participate in the partition proceedings resulted in the order directing the sale of the property which may not now be collaterally attacked by way of the instant action. Joseph Marino has not otherwise submitted any proof to substantiate his allegations of malfeasance on the part of Al-Kadeh and Lati.

Accordingly, the motions of defendants are granted in all respects, the motion of Joseph Marino is denied, and the instant action is hereby dismissed.

The foregoing constitutes the decision, order and judgment of the court.

E N T E R,

J. S. C.