Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of plaintiff Residential Credit Solutions, Inc. (hereinafter RCSI), filed on May 15, 2014, under motion sequence number three, for an order pursuant to CPLR 3212 (e) granting partial summary judgment in its favor as against intervenor-defendant Indymac Venture LLC (hereinafter Indymac) that its "equitable " mortgage lien has priority over Indymac's alleged unrecorded equitable position, if any, on Block 3216, Lot 6, in Brooklyn, New York (hereinafter the subject property).^[FN1]

Notice of Motion

Affidavit of RCSI's counsel

Exhibit A-L

Memorandum of Law in Support

Affidavit of opposition

Exhibit A-BB

Reply Affidavit

Exhibit A-D and exhibit M

On September 14, 2009, RCSI commenced the instant action by filing a summons, complaint and notice of pendency with the Kings County Clerk's Office. By amended complaint dated August 5, 2013, RCSI alleged fifty-three allegations of fact in support of three causes of action. The first cause of action is to foreclose a mortgage on certain real property. The second [*2]cause of action is to reform a mortgage encumbering the subject property. The third cause of action is for a declaratory judgment declaring that RCSI's mortgage is a lien on the subject property superior to any lien claimed by IndyMac.By amended answer dated October 5, 2013, Indymac asserted twenty-four affirmative defenses.

Pursuant to CPLR 3001, the Supreme Court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed. To constitute a "justiciable controversy," there must be a real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect (see Chanos v MADAC, LLC, 74 AD3d 1007, 1008 [2nd Dept 2010]). The primary purpose of a declaratory judgment is to stabilize an uncertain or disputed jural relationship with respect to present or prospective obligations (Chanos v MADAC, LLC, 74 AD3d 1007, 1008 [2nd Dept 2010] citing Goodman v Reisch, 220 AD2d 383 [2nd Dept 1995]).

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d at 324). The prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings (Miller v Village of E. Hampton, 98 AD3d 1007 [2nd Dept 2012] citing Foster v Herbert Slepoy Corp., 76 AD3d 210 [2nd Dept 2010]).

A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated For Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).

"While [a] court will impose an equitable mortgage where the facts surrounding a transaction evidence that the parties intended that a specific piece of property is to be held or transferred to secure an obligation, it is necessary that an intention to create such a charge clearly appear from the language and the attendant circumstances" (Deutsche Bank Trust Co. Americas v Cox, 110 AD3d 760, 761 [2nd Dept 2013] citing Tornatore v Bruno, 12 AD3d 1115, 1117-1118 [4th Dept 2004]).

"Where property of one person is used in discharging an obligation owed by another or a lien upon the property of another, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee or lien-holder" (Restatement, Restitution, § 162) (King v Pelkofski, 20 NY2d 326, 333—334 [1967] ; see also Zeidel v Dunne, 215 AD2d 472 [2nd Dept 1995]).

The doctrine of equitable subrogation "is broad enough to include every instance in which one party pays a debt for which another is primarily answerable and which in equity and good conscience should have been discharged by the latter, so long as the payment was made either under compulsion or for the protection of some interest of the party making the payment, and in discharge of an existing liability" (Bank of NY v Penalver, 125 AD3d 795, 796 [2nd Dept 2015]).

RSCI's motion seeks an order pursuant to CPLR 3212 (e) granting partial summary judgment in it favor declaring that its equitable mortgage lien has priority over Indymac's alleged unrecorded equitable position, if any, on Block 3216 Lot 6 in Brooklyn, New York.RCSI's motion papers contain an affidavit of its counsel, a copy of its amended complaint, a copy of Indymac's amended answer, a decision of this Court dated April 26, 2013, issued in a matter bearing index number 28573/2010 (hereinafter the related matter), numerous documents filed and recorded with the Office of the City Register of the City of New York, a HUD-1 settlement statement and an affidavit of Jeanie Caldwell.

RCSI's amended complaint is not verified and, therefore, cannot be used as an affidavit of the facts alleged therein (see CPLR 105 [u]). The affidavit of Mark A. Berman (hereinafter Berman), RCSI's counsel, relies on, among other things, mortgages and other documents recorded with the Office of the City Register of the City of New York and a court decision issued on April 26, 2013 in the related matter.

Berman's affidavit contends that RCSI has an equitable lien as to Lot 6, as a matter of law because its mortgage was utilized to payoff and satisfy in the entirety the mortgage of Indymac Federal Savings Bank. Berman, however, does not allege that it was the transactional attorney for the execution of RCSI's mortgage on the subject property. Nor does he show any basis for possessing personal knowledge of this fact. In sum, Berman's affidavit does not set forth the facts and surrounding circumstances of RSCI's execution of its mortgage on the subject property to support the imposition of an equitable mortgage.

RCSI's motion relies in part on the April 26, 2013 decision and order of this Court issued in the related action. In the related action, plaintiff Inymac, sought a declaratory judgment that it had an equitable lien on property located in Kings County and designated on the tax map of the City of New York as Block 3216, Lot 6, that was superior to any lien on that property held by defendant RCSI.

By the April 26, 2013 decision, the Court granted RCSI's motion to dismiss that part of the complaint which sought a judgment declaring that Inymac had an equitable lien on the subject property that was superior to any lien on that property held by RCSI. The April 26, 2013 decision and order, however, was reversed by the Appellate Division Second Department by its decision and order issued on October 22, 2014 (see Indymac Venture, LLC v Nagessar, 121 AD3d 945 [2nd Dept 2014]).

RCSI also relies on an affidavit of Jeanie Caldwell (hereinafter Caldwell), annexed as exhibit L to its motion. Caldwell's affidavit is signed on April 17, 2013 and states therein that it is in opposition to RCSI's motion for summary judgment. The affidavit was signed over one year prior to RCSI's filing of the instant motion. RCSI did not explain how and in what context it obtained Caldwell's affidavit. Furthermore, Berman, RCSI's counsel, stated in the third paragraph of his affidavit that Caldwell has made an admission in the twelfth paragraph of her affidavit. The alleged admission is that Indymac's lien on the subject property is subordinate to [*3]RCSI's lien. Caldwell's affidavit, however, contains only nine paragraphs. Moreover, Caldwell's affidavit read as a whole does not constitute an admission of RCSI's alleged priority.

Indymac submitted an affirmation in opposition, dated June 18, 2014, an affidavit of the Vice-president of its servicing company, dated June 19, 2014, and twenty-eight annexed exhibits labeled A to BB.

In reply to Indymac's opposition papers, RCSI submitted an affidavit of the assistant Vice-president of its servicer, dated August 12, 2014, and five annexed exhibits. The court did not consider RCSI's reply papers and accompanying exhibits in support of RCSI's motion. RCSI can not rely on evidence submitted for the first time in its reply papers in support of its motion (L'Aquila Realty, LLC v Jalyng Food Corp.,103 AD3d 692 [2nd Dept 2013] citing GJF Constr. Corp. v Cosmopolitan Decorating Co., Inc., 35 AD3d 535, 535 [2nd Dept 2006]).

In light of the foregoing, RCSI did not met it prima facie burden to show its entitlement to summary judgment declaring that it has an equitable mortgage lien which has priority over Indymac's alleged unrecorded equitable position, if any, on Block 3216 Lot 6 in Brooklyn, New York.

Accordingly, RCSI's motion for partial summary judgment is denied, regardless of the sufficiency of Indymac's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

RCSI's motion for an order pursuant to CPLR 3212 (e) granting partial summary judgment in its favor as against intervenor-defendant Indymac declaring that its equitable mortgage lien has priority over Indymac's lien on Block 3216, Lot 6, in Brooklyn, New York is denied.

The foregoing constitutes the decision and order of this Court.

J.S.C.