Defendant Fatimat Talabi moves for an order, pursuant to CPLR 3215, granting a default judgment against defendant Georgia M. Hughes on Talabi's cross claims. Defendant Federal National Mortgage Association (FNMA) s/h/a Mortgage Electronic Registration Systems (MERS) as nominee for Wall Street Mortgage Bankers, Ltd moves for an order, pursuant to CPLR 3211 (a)(5) and (7) and CPLR 3016 (b), dismissing the complaint.

In accordance with the order of this court dated November 21, 2014, Talabi's motion for a default judgment is held in abeyance pending the determination of Georgia M. Hughes' capacity by a guardian ad litem to be appointed by the court. The plaintiff brought this action seeking partition of two properties located at 42 Troy Avenue and 44 Troy Avenue in Brooklyn. The plaintiff asserts that she is the only child of Ira Hughes and Georgia M. Hughes. By deed August 4, 1966, 42 Troy Avenue was conveyed by certain grantors to Ira Hughes and Georgia M. Hughes. By deed dated April 18, 1978, 44 Troy Avenue was conveyed by the City of New York to Ira Hughes individually, with no mention of Georgia M. Hughes. According to the complaint, Ira Hughes died intestate on May 2, 2003. By separate deeds dated March 31, 2005, Georgia M. [*2]Hughes conveyed both properties to Talabi. In the deed conveying 44 Troy Avenue to Talabi (which property was previously conveyed by the City of New York solely to Ira Hughes), Georgia Hughes identified herself as the surviving tenant by the entirety of Ira Hughes. Talabi thereafter encumbered the properties with mortgages recorded in the name of MERS.

In her complaint, the plaintiff sets forth claims for partition of the properties as a tenant in common. With respect to 44 Troy Avenue, she alleges that Georgia M. Hughes "falsely and fraudulently" deeded the property to Talabi by indicating that she was a surviving tenant by the entirety. She asserts that the transfer was "fraudulent," insofar as Georgia M. Hughes was not named as a grantee of this property. The plaintiff claims that as a result of Ira Hughes' death intestate, she acquired a 50% interest in 44 Troy Avenue as a tenant in common with Georgia M. Hughes.

With respect to 42 Troy Avenue, the plaintiff alleges that Ira Hughes and Geogia M. Hughes were not married on the day the deed was conveyed to Ira Hughes and Georgia M. Hughes and, therefore, Georgia M. Hughes "falsely and fraudulently" deeded the property to Talabi by indicating that she was a surviving tenant by the entirety. The plaintiff alleges that a 25% interest in the property vested in her as a tenant in common upon the death of Ira Hughes, with 75% vesting in Georgia M. Hughes.

In its motion to dismiss the complaint, FNMA maintains that while the plaintiff delineates this action as one for partition, she cannot maintain such an action until her interests in the properties as a tenant in common are established, i.e., when the conveyances of her alleged interests by Georgia M. Hughes to Talabi are set aside. FNMA argues that inasmuch as the plaintiff alleges these conveyances were "fraudulent," the six-year statute of limitations applies to these claims. FNMA contends that this action is untimely as the conveyances occurred on March 31, 2005, more than six years prior to the commencement of this action. FNMA further argues that the plaintiff should have discovered the fraud with reasonable diligence within two years prior to the commencement of this action, and that the action is further subject to dismissal under CPLR 3211 (a)(7) as the fraud claims are not pleaded with the requisite particularity under CPLR 3016 (b).

"The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages" (Introna v Huntington Learning Ctrs., Inc., 78 AD3d 896, 898 [2d Dept 2010]; see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]; House of Spices [India], Inc. v SMJ Servs., Inc., 103 AD3d 848, 850 [2d Dept 2013]). "All of the elements of a fraud claim must be supported by factual allegations containing the details constituting the wrong' in order to satisfy the pleading requirements of CPLR 3016 (b)" (House of Spices [India], Inc. v SMJ Servs., Inc., 103 AD3d at 850, quoting Cohen v Houseconnect Realty Corp., 289 AD2d 277, 278 [2d Dept 2001]). In this action, the plaintiff has not set forth a cognizable claim of fraud against Georgia M. Hughes, as the plaintiff does not allege that Georgia M. Hughes made any misrepresentations to the plaintiff concerning the properties. Rather, any cause of action for fraud based upon Georgia M. Hughes' misrepresentations that she was the sole owner of the properties as surviving tenant by the entirety would belong to the purchaser, Talabi.

Nonetheless, although the plaintiff has not properly alleged a cause of action for fraud against Georgia M. Hughes, such does not necessitate dismissal of this action. While not explicitly designated as such, the plaintiff's claims for a judgment declaring that she is seized and possessed as an owner of the properties as a tenant in common (paragraphs "a" and "k" of the complaint's "Wherefore" clause) are essentially claims to quiet title to the properties under article 15 of the Real Property Actions and Proceedings Law [RPAPL], which is governed by the ten-year statute of limitations (CPLR 212 [a]). Because this action was commenced within ten years of the conveyances to Talabi, it is timely (see Pravato v M.E.F. Builders, Inc., 217 AD2d 654 [2d Dept 1995]).

In determining whether a complaint is sufficient to withstand a motion pursuant to CPLR 3211 (a)(7), "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). The court must accept the facts alleged in the complaint to be true and determine only whether the facts alleged fit within any cognizable legal theory (see Dye v Catholic Med. Ctr. of Brooklyn & Queens, 273 AD2d 193 [2d Dept 2000]). The court "is not concerned with determinations of fact or the likelihood of success on the merits" (Detmer v Acampora, 207 AD2d 477 [2d Dept 1994] see Stukuls v State of New York, 42 NY2d 272, 275 [1977]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman Sachs & Co., 5 NY3d 11, 19 [2005]).

RPAPL 1501 (1) provides that "[w]here a person claims an estate or interest in real property . . . such person . . . may maintain an action against any other person, known or unknown . . . to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records, or from the allegations of the complaint, the defendant might make." Accepting the allegations in the complaint as true, the plaintiff states a cause of action to quiet title as a tenant in common. According to the complaint, Ira Hughes was the sole owner of 44 Troy Avenue and a 50% owner of 42 Troy Avenue as a tenant in common with Georgia M. Hughes. Upon the death of Ira Hughes intestate, his interest in the properties vested by operation law in his distributees, Georgia M. Hughes and the plaintiff, as tenants in common (see Matter of Fry, 28 Misc 2d 949 [Sur Ct, Suffolk County 1961). Under those circumstances, Georgia M. Hughes could not have transferred the plaintiff's interest in the properties to Talabi since "conveyances of land to which the grantors had no title convey no interest to the grantees" (O'Brien v Town of Huntington, 66 AD3d 160, 167 [2d Dept 2009]). The conveyances to Talabi would be limited to Georgia M. Hughes' interests, and the plaintiff would remain a co-owner of the properties with Talabi as a tenant in common.

Of course, "there is nothing in New York law that prevents one of the co-owners from mortgaging or making an effective conveyance of his or her own interest in the tenancy. To the contrary, each tenant may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other" (V.R.W., Inc. v Klein, 68 NY2d 560, 565 [1986]). However, " [a] co-owner can only encumber its own interest in property without the consent of the other co-owners'" (1.2.3. Holding Corp. v Exeter Holding, Ltd., 72 AD3d 1040, 1042 [2d Dept 2010], quoting Kwang Hee Lee v Adjmi 936 Realty Assocs., 34 AD3d 646, 648 [2d Dept 2006]). A mortgage given by one of several parties with an interest in the mortgaged property, while not invalid, gives the mortgagee security only up to the interest of the mortgagor (see CitiFinancial Co. (DE) v McKinney, 27 AD3d 224, 226—227 [1st Dept 2006]). Accepting the allegations in the complaint as true, any mortgage given by Talabi would not encumber the plaintiff's interests in the properties (see Boyarsky v Froccaro, 125 Misc 2d 352, 359 [Sup Ct, Nassau County 1984] [putative mortgagor must have a mortgageable interest in the property sought to be charged as security]).

As a result, FNMA's motion to dismiss the complaint is denied in all respects.

yvonne lewis, JSC