The following papers numbered 1 through 8 were fully submitted on the 27th day of March, 2014.

In this action to quiet plaintiffs DENA NACHMAN's and LAWRENCE NACHMAN's title to premises 599 Johnson Street, Staten Island, New York, the motions by defendants ALEXIS DENOUR, JOSEPH LOPARDO, and OLD TOWN ABSTRACT COMPANY LLC, for summary judgment, pursuant to CPLR §3212, to dismiss plaintiffs' complaint are granted in their entirety. The motion by defendant 599 JOHNSTON TERRACE LLC, for summary judgment, pursuant to CPLR §3212, is denied as it was untimely filed ^[FN1] .

Prior to their relocation to Australia in February, 2007, plaintiffs DENA NACHMAN and LAWRENCE NACHMAN (hereinafter "NACHMANS") executed General Durable Powers of Attorneys which appointed their daughter DARIA NACHMAN (hereinafter "DARIA") as attorney in fact. DARIA was authorized to, among other things,

In June, 2007, the NACHMANS agreed to sell the subject premises to their next door neighbor co-defendant LEONARD LOMBARDO ("LOMBARDO") for the sales price of $600,000 to be paid in installments over five years with an interest rate of 6%. On July 27, 2007, in consideration of a promissory note in the principal amount of $600,000 executed by LOMBARDO, DARIA, as attorney in fact, executed a Warranty Deed with Full Covenants transferring title to the premises to co-defendant HOMES, LOANS & BEYOND, LLC, an entity solely owned by LOMBARDO. Of particular significance, the NACHMANS, who elected to proceed with the transaction without legal assistance, failed to secure the promissory note with a mortgage. LOMBARDO remitted $14,000 to the NACHMANS as the first payment on the note and defaulted thereafter.

Approximately eights months after acquiring the property, LOMBARDO sold the premises to co-defendant 599 JOHNSTON TERRACE LLC an entity formed by co-defendant JOSEPH LOPARDO ("LOPARDO") for the sum of $490,000. Prior to his purchase, LOPARDO had his company, co-defendant OLD TOWN ABSTRACT COMPANY LLC (hereinafter "OLD TOWN"), perform a title search which determined that there were no liens, mortgages or other encumbrances [*2]on the property. On October 30, 2008, the property was conveyed from co-defendant 599 JOHNSTON TERRACE LLC to LOPARDO, individually. Thereafter, on January 10, 2012, LOPARDO sold the premises to co-defendant ALEXIS DENOUR ("DENOUR") for the sum of $485,000.

Approximately five years after LOMBARDO defaulted on the promissory note, the NACHMANS commenced this action in September, 2012 claiming that they were defrauded by LOMBARDO and that the deed transferring the premises to co-defendant HOMES, LOANS & BEYOND, LLC in July, 2007 is void ab initio rendering all subsequent transfers to the co-defendants void as a matter of law regardless of whether they are bona fide purchasers. The NACHMANS claim that they sought legal advice in late 2007 or early 2008 and had also contacted the Richmond County District Attorney's office thereafter. However, it is undisputed that no legal proceedings were commenced until this present action and that there was no encumbrance, mortgage, lien or notice of pendency filed that would affect marketable title.

Although the NACHMANS acknowledge that they had agreed to sell the property to LOMBARDO, they also claim that it was never their intention to transfer title to the premises to him until the promissory note was fully paid. In addition, plaintiffs claim that they had not given permission to DARIA to sign the deed or any other documents to convey the property. The NACHMANS also contend that LOPARDO had known or should have known that LOMBARDO had perpetrated a fraud against them. They allege that LOPARDO, an experienced real estate professional, failed to use due diligence and should have recognized alleged discrepancies in prior transfer documents, irregularities in the subject powers of attorneys, and other questionable matters before he purchased the property. Similarly, the NACHMANS allege that there are doubts as to the legitimacy of the purchase of the property by ALEXIS DENOUR.

The "proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has satisfied this burden, "the burden shifts to the [opponent] to lay bare his or her proof and demonstrate the existence of a triable issue of fact" (Chance v. Felder, 33 AD3d 645, 645-646 [2006]). LOPARDO and OLD TOWN submit that plaintiffs have failed to identify any specific evidence which would support their claim that LOPARDO and OLD TOWN acted in concert with LOMBARDO in his scheme to perpetuate a fraud upon them. DENOUR also contends that she is also a bona fide purchaser for value as she did not have any prior actual or constructive knowledge of the NACHMANS' claims against LOMBARDO.

RPL §291 provides, in part, as follows: every " conveyance not so recorded is void as against any person who subsequently purchases . . . the same real property . . . in good faith and for valuable consideration . . . and whose conveyance . . . is first duly recorded". The NACHMANS failed to obtain and record a mortgage from LOMBARDO which would have put subsequent purchasers on notice that there was a lien on the property.Furthermore, they have failed to particularize any facts which would in any way infer or establish that LOPARDO knew that LOMBARDO had defrauded them. Mere allegations that LOPARDO should have been "suspicious" that there was "possible underlying fraud" and that he "moved callously forward to close the deal" are insufficient to establish that he had actual or constructive notice of LOMBARDO's default in the payment of the promissory note to the NACHMANS.In addition, plaintiffs fail to provide any evidence that [*3]DARIUS had any awareness or prior knowledge of the alleged fraudulent scheme committed by LOMBARDO. As the title of a bona fide purchaser is protected unless he or she had previous notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor", the motions of defendants dismissing the complaint of plaintiff are granted (Morris v. Adams, 82 AD3d 946 [2011], RPL §266).

Accordingly, it is

ORDERED, that the motion by defendant ALEXIS DENOUR, for summary judgment, pursuant to CPLR §3212, to dismiss plaintiffs' complaint is granted; and it is further

ORDERED, that the motion by defendants JOSEPH LOPARDO, and OLD TOWN ABSTRACT COMPANY LLC, for summary judgment, pursuant to CPLR §3212, to dismiss plaintiffs' complaint is granted; and it is further

ORDERED, that the motion by defendant 599 JOHNSTON TERRACE LLC for summary judgment, pursuant to CPLR §3212, to dismiss plaintiffs' complaint is denied.

This shall constitute the decision and order of the Court.

E N T E R,

HON. PHILIP G. MINARDO