Recitation, as required by CPLR 2219(a), of the papers considered in the review of this:

ORDER TO SHOW CAUSE SUBMITTED MAY 18, 2011

PapersNumbered

Notice of Motion and Affidavits Annexed............................................

Order to Show Cause and Affidavits Annexed....................................1 & 2.

Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

"The Rime of the Ancient Mortgagor"^[FN1]

There was an ancient mortgagor

Who stoppeth one of three.

Excuse me sir

He did inquire

Are you my missing mortgagee?

I took a loan

To buy a home [*2]

In nineteen-seventy.

I paid it off

But some dummkoff

No sat did get for me.

I sold my land

Made several grand

Title it did close.

But without a sat

I can't sit phat

Now I'm paying through the nose.

This deal of course

Is an albatross

Around my legal neck.

This isn't funny

Cause held escrow money

Is beyond my call and beck.

Lawyers, lawyers everywhere

Want money just to think.

Lawyers, lawyers everywhere

Yet no sat will someone ink.

I am an ancient mortgagor

In debt for forty years.

Forced to wander helplessly

Till the court my title clears.

Petitioner ^[FN2], Anthony Verderame commenced this special proceeding pursuant to Real Property Actions and Proceedings Law §1931, seeking to have the court discharge an ancient purchase money mortgage. Petitioner is the mortgagor, and respondents, Vanleit, Inc., Catherine H. Frank and Walter J. Dickerson, are the alleged mortgagees. The petitioner is represented by counsel. Respondents have neither appeared nor submitted any opposition.

Petitioner was the owner of the premises located at 42 Westervelt Avenue, Staten Island, New York, 10301 having purchased the property by deed dated November 27, 1970 from Vanliet, Inc. and Walter J. Dickerson, individually. In or about January 2011, a [*3]closing took place wherein the petitioner sold the premises to a bona fide purchaser. In connection with the sale a title search was obtained from JTD Land Services, Inc. which disclosed that a purchase money mortgage, in the amount of $6,700.00, remains open of record since 1970. At the closing, monies were held in escrow from the funds due petitioner pending discharge of the ancient purchase money mortgage between petitioner and respondents.

In support of his application, the petitioner has submitted several documents required by RPAPL § 1931. Petitioner has produced the deed for 42 Westervelt Avenue dated November 27, 1970, and recorded in the Richmond County Clerk's Office on December 1, 1970 under Liber 1925 and Page 195. Petitioner also provided a copy of the purchase money mortgage, dated November 27, 1970 which was recorded in the Richmond County Clerk's Office on December 1, 1970, at Liber 1843 and Page 407. A New York Department of State, Division of Corporations search as to the current status of respondent Vanleit, Inc. was provided as well. Also included is a search from a licensed title company [RPAPL §1931(1)]. Finally, petitioner produced an Affidavit of Due Diligence from a process server and an affidavit of publication from the Staten Island Advance [RPAPL §1931(4)].

RPAPL § 1931 provides:

1. The mortgagor,... having any interest in any lands described in any mortgage of real estate in this state, which is recorded in this state, and which, from the lapse of time, is presumed to be paid may present his petition together with an official search of the recording officer in whose office the mortgage is recorded, or a search prepared by a person duly licensed an admitted to the practice of law in this state or by a title company duly incorporated and authorized to transact business in this state showing assignments of record, if any to the courts mentioned in this article, asking that such mortgage may be discharged off the record.

2. Such petition shall be verified; it shall describe the mortgage, and when and where recorded , and shall allege that such mortgage is paid; that the mortgage has, or, if there be more than one mortgagee, that all of them have been dead for more than five years;... if such mortgagee be a corporation or association, that such corporation or association has ceased to exist and do business as such for more than five years; the time and place of his or their death; whether or not letters testamentary or administration have been taken out, ; or if a corporation or association, its last place of business;... and that the mortgage has not been assigned or transferred....

Provided, further, that in case of a mortgage which was recorded or adjudged to have been paid and no longer a lien, more than fifty years prior to the presentation of such petition, if the petitioner is unable with reasonable diligence to ascertain the facts herein required to be stated in the petition, other than the fact of payment, the petition may set forth the best knowledge and information in respect thereto and what efforts have been made to ascertain such facts, and if the court shall be satisfied that the petitioner has made reasonable effort to ascertain such facts, and the same cannot be ascertained with [*4]reasonable diligence, it may then, in its discretion, proceed upon said petition as hereinafter provided.

3. Such petition may be presented to the supreme court in the county in which the mortgaged premises are situated, or to the county court of such county.

4. The court, upon the presentation of such petition, shall make an order requiring all persons interested to show cause at a certain time and place why, such mortgage should not be discharged of record. The names of the mortgagor, mortgagee and assignee, if any, the date of the mortgage and where recorded, and the town and the city in which the mortgaged premises are situate, shall be specified in the order. The order shall be published in such newspaper or newspapers, and for such time as the court shall direct. The court may also direct the order to be personally served upon such persons as it shall designate.

5....Unless the allegation of payment shall be denied, and evidence be given tending to rebut the presumption of payment, arising from the lapse of time, such lapse of time shall be sufficient evidence of payment. Upon being satisfied that the matters alleged in the petition are true, the court may make an order that the mortgage be discharged of record.

Petitioners compliance with all the requirements of RPAPL § 1931 is required if such a special statutory proceeding is to be available.

There are several problems with the petitioner's submission.

First, as noted in the endnote the pleading designates the parties as plaintiff-defendant rather than petitioner-respondent. The court is sua sponte correcting this defect.

Second, the statute requires that the pleading be "verified" [RPAPL §1931(2)]. The statement from Anthony Verderame is not a verification as set forth in CPLR §3020 & 3021. It is only notarized and does not contain the language required for a verification. Petitioner may correct this defect by filing a proper verified petition without the need to reserve the pleading.

Third, the affidavit of due diligence from the licensed process server indicates the efforts made to serve this process on the mortgagees Catherine H. Frank and Walter J. Dickerson at 630 Victory Boulevard, Staten Island, New York. The mortgage, however, only lists that address for Dickerson. Catherine Frank's residence is set forth as 511 East 86th Street, New York, New York. Petitioner has not presented any evidence of an attempt to locate Frank at the Manhattan address or a statement that she in fact lived at Victory Boulevard after 1970. The affidavit in regard to petitioner's efforts to locate Dickerson is sufficient to establish that reasonable diligence to obtain additional information as to his whereabouts has been made and that no other address is known to the petitioner.

Fourth, the petitioner merely states that "the purchase money mortgage has been [*5]paid in full," there is no elaboration as to why he believes this is true or when he believes payment was made. A supplemental verified statement is needed in this regard.

Fifth, an issue exists as to whether the Civil Court of the City of New York has the jurisdiction to hear this application. The statute clearly states that any such proceeding must be brought in either supreme or county court [RPAPL §1931(3)]. The court in Riscato v Lumberyard Supply Corp., 194 Misc 2d 770 (2003), determined that the Civil Court has the jurisdiction to entertain an application to discharge an ancient mortgage for less than $25,000.00 relying on the language contained in New York City Civil Court Act §203(b) and §212. This court agrees and has found on other occasions that the Civil Court has jurisdiction over matters designated for the county court [In re Application of an Individual with a Disability for Leave to Change Her Name, 195 Misc 2d 497 (2003); Arvelo ex rel Arvelo v. City New York, 182 Misc 2d 101 (1999)]. It is apparent that the legislature has to undertake an extensive review of the approximately thirty-five feet of statutes contained in McKinney's so as to insure that the residents of New York City have the same access to the civil court as persons living outside the City have to county court.

Sixth, according to case law, "Under this statute the presumption of payment after a lapse of 20 years from the due date of the mortgage, in the absence of evidence tending to rebut the presumption, is sufficient evidence of payment" [Application of Schwartz 21 Misc 2d 845 (1960)]. Prior to 1963 when it was repealed and replaced by RPAPL §1931, Real Property Law §340 provided that a mortgage that was of record for twenty-years after its due date could be discharged by application to the court. No similar provision exists in the current statute. Here, the mortgage is dated November 27, 1970 but there is nothing in the document to disclose a due date or payment terms. In a proceeding to cancel an ancient mortgage, case interpretation of the current and prior statute establishes a presumption of payment after of a lapse of 20 years from the due date, not the date the mortgage was recorded. If this information is not available then the mortgage must have been of record for at least fifty-years prior to the presentation of such petition [RPAPL §1931(2)]. The mortgage in question does not have a due date and petitioner has not presented any extrinsic evidence from which the court could conclude there was a due date. There is reference to a promissory note which might assist the court in resolving this issue, however, that has not been made part of the record. Therefore, it appears that the requirement of the statute that fifty-years have elapsed must be met.

"A mortgage cannot be discharged as an ancient mortgage where the petition fails to allege the debt was due, or alleges that to petitioner's best knowledge and belief the mortgage was paid, but omits any facts to show such knowledge or information" [ Application of Zimmerman, 21 Misc 2d 1048 (1960)]. Counsel for the petitioner is not an interested party with knowledge of the facts. Counsel's statements may provide some guidance in regard to Mr. Verderame's allegations, but an affidavit by an attorney without personal knowledge of the facts has no probative value. The petition includes an affidavit from Mr. Verderame stating from his personal knowledge the date the mortgage was due and that he paid the mortgage in full. However, he fails to recite the basis of his belief that the mortgage has been satisfied and, as set forth in Zimmerman above, such a self-serving [*6]statement is insufficient.

The petition also includes the required New York Department of State-Division of Corporations search of the name Vanleit, Inc. to show the current status of the company. When the recitals in the petition show the present state of the corporation, and that it has "ceased to exist and do business for more than five years," more is not required [In re Bryan, 210 A.D. 93, (1924)]. Here the search has revealed that Vanleit, Inc., has a current entity status of "Inactive- Dissolution" as of July 27, 1979; a date clearly more than five years ago. There is no address listed for the corporation nor an agent named for service of process. Petitioner has complied with this part of the statute. It should be noted however, that Vanleit, Inc. is not a mortgagee. It was one of the grantees on the deed and technically need not have been named in this proceeding. Although for some reason the recording information page of this mortgage improperly lists Vanleit and Dickerson as the mortgagees rather than Frank and Dickerson as designated in the body. There is no indication that this mortgage has ever been transferred or assigned from the original parties based on the documentation provided and as certified by the title company. Counsel was correct to name Vanleit, Inc. so as to prevent any confusion in this regard. Petitioner has satisfied this requirement of RPAPL § 1931(2) by showing Vanleit, Inc. has ceased to do business for more than five years.

Petitioner has also submitted proof of publication, which recites the notice printed, and the four consecutive weeks it was in the Staten Island Advance, a newspaper published in the County of Richmond, City and State of New York. It is signed by the Legal Advertising Clerk of the SI Advance and notarized. Petitioner has satisfied the notice by publication requirement [RPAPL §1931(4)]. The search from the title company also is sufficient.

The court finds that the petitioner has not complied with all the statutory requirements pursuant to RPAPL § 1931. The above listed defects must be remedied. In addition, because the mortgage date is less than fifty-years ago, counsel must also submit a search of the surrogate court records of New York and Richmond Counties to determine if any estates were probated for either Frank or Dickerson. Counsel also needs to provide some case law which would permit the court to discharge this mortgage in less that fifty-years. Petitioner may correct these defects by submitting supplemental documentation. Counsel may want to contact a licensed title insurance company and determine if there is any other avenue available to clear this encumbrance.

The foregoing constitutes the decision and order of the court.

Staten Island, NYHON. Philip S. StraniereJudge, Civil Court [*7]

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