145 Rosedale Ave. LLC v Bank of Am., N.A.

Supreme Court, Richmond County

Decided on April 22, 2026

Index No. 151475/2022

Ronald Castorina, Jr., J.

I. Statement Pursuant to CPLR § 2219 [a]

The following papers were considered on Motion Sequence No. 004, plaintiff's motion for summary judgment pursuant to CPLR § 3212 and RPAPL § 1501 [4], and on Motion Sequence No. 005, defendant Bank of America, N.A.'s separate motion for summary judgment dismissing the amended complaint pursuant to CPLR § 3212:

On Motion Sequence No. 004: plaintiff's Notice of Motion dated January 29, 2026, plaintiff's affirmation in support dated January 29, 2026, plaintiff's exhibits annexed thereto, and plaintiff's memorandum of law in support dated January 29, 2026 (NY St Cts Filing [NYSCEF] Doc Nos. 76, 77, 78-85); defendant Bank of America, N.A.'s affirmation in opposition dated February 27, 2026, defendant's exhibits annexed thereto, (NY St Cts Filing [NYSCEF] Doc Nos. 116-117); and plaintiff's reply memorandum of law in further support dated March 23, 2026 (NY St Cts Filing [NYSCEF] Doc No. 118).

On Motion Sequence No. 005: defendant Bank of America, N.A.'s notice of motion, affirmation in support, exhibits annexed thereto, and memorandum of law in support (NY St Cts Filing [NYSCEF] Doc Nos. 86-104); plaintiff's opposition papers, including plaintiff's memorandum of law in opposition dated February 27, 2026 (NY St Cts Filing [NYSCEF] Doc No. 115); and defendant Bank of America, N.A.'s reply affirmation in further support dated March 27, 2026 (NY St Cts Filing [NYSCEF] Doc No. 119).

The motions are consolidated herein for disposition by this single Decision and Order.

Oral argument was conducted on the record in person at the courthouse on April 20, 2026. This is a Decision and Order on Motion Sequences #004 and #005.

II. Findings of Fact

Plaintiff 145 Rosedale Avenue LLC acquired title to 873 Travis Avenue, Staten Island, New York, by deed dated September 17, 2021, which deed was thereafter recorded on October 26, 2021. (NY St Cts Filing [NYSCEF] Doc No. 80). Plaintiff alleges, and defendant does not dispute for purposes of these motions, that plaintiff paid $500,000.00 in consideration for the conveyance and thereafter took possession of the premises. (NY St Cts Filing [NYSCEF] Doc Nos. 85; 115).

The mortgage at issue was executed in September 2005 by non-party Christine Scarso and was recorded on October 14, 2005. Defendant Bank of America, N.A., contends that, through subsequent recorded assignments, it became the holder of that mortgage. (NY St Cts Filing [NYSCEF] Doc Nos. 87; 89-91). Plaintiff, for purposes of its motion practice, does not premise its application upon any defect in the execution of the mortgage instrument itself, but instead upon its claimed status as a bona fide purchaser for value without legally operative notice of an enforceable adverse interest at the time of its acquisition.

The parties set forth a lengthy foreclosure history. Plaintiff states that an earlier foreclosure action commenced in 2010, allegedly accelerated in August 2008, but not served and not discontinued. (NY St Cts Filing [NYSCEF] Doc No. 85). Plaintiff further states that in 2015 a second foreclosure action was commenced, notwithstanding that the earlier action had not been discontinued, and that the borrower thereafter sought vacatur and dismissal of that later foreclosure action upon, inter alia, the pendency of the earlier foreclosure action and statute of limitations grounds. (see id). Defendant, by contrast, frames the material foreclosure history principally through the 2015 action and the orders entered therein, including the order confirming the judgment of foreclosure and sale entered December 26, 2018, the borrower's later motion practice, the dismissal that followed, and the subsequent appellate reversal. (NY St Cts Filing [NYSCEF] Doc No. 95; 100).

It is undisputed that, during oral argument before Justice Green on January 8, 2020, the foreclosure matter was dismissed (NY St Cts Filing [NYSCEF] Doc No. 81), and that a written order memorializing that determination was later dated January 21, 2022 (NY St Cts Filing [NYSCEF] Doc No. 96) and entered March 14, 2022 (NY St Cts Filing [NYSCEF] Doc No. 97). Plaintiff emphasizes the oral dismissal and defendant emphasizes that the written order had not yet been signed or entered when plaintiff purchased the property on September 17, 2021. Defendant's own submissions expressly state that plaintiff purchased "[b]efore the dismissal order was entered and before notice of entry was served," and that notice of entry of the dismissal order was served on March 22, 2022. (NY St Cts Filing [NYSCEF] Doc No. 116).

It is likewise undisputed that defendant did not obtain a stay following the dismissal and that the notice of pendency in the foreclosure action expired on May 21, 2021. (NY St Cts Filing [NYSCEF] Doc No. 80; 85; 104). Plaintiff stresses that no extension was obtained, no successive notice of pendency was filed before its purchase, and no action was taken to preserve the efficacy of the expired notice prior to the closing. (NY St Cts Filing [NYSCEF] Doc No. 85). Defendant does not dispute that the prior notice of pendency had lapsed before plaintiff took title, but argues that the lapse of the lis pendens did not extinguish the mortgage and did not transmute plaintiff into a bona fide purchaser because plaintiff allegedly had actual notice of the mortgage and foreclosure litigation. (NY St Cts Filing [NYSCEF] Doc No. 104).

Plaintiff's principal, Darshan Shah, testified that he learned the property was for sale nearly a year after the foreclosure action had been dismissed. (NY St Cts Filing [NYSCEF] Doc No. 85 at page 33 line 20 through page 34 line 18). He further testified that, sometime between May and July 2021, he met with attorney Jeremy Iandolo, Esq., who had represented Christine Scarso in the foreclosure litigation, and that this was when Shah first learned of the foreclosure action. (NY St Cts Filing [NYSCEF] Doc No. 82 page 35 line 14 through 38 line 19). Plaintiff relies heavily upon Shah's testimony that Iandolo specifically told him the foreclosure action had been dismissed and that the mortgage no longer encumbered the property, and that Shah was shown the transcript of the oral proceedings and the Decision and Order reflecting the dismissal. (see id at page 41 lines 5-19). [*2]Plaintiff further relies on Shah's testimony that he thereafter consulted a second attorney, who confirmed the same understanding, before plaintiff proceeded to purchase the property for $500,000.00. (see id at page 57 line 12 through page 58 line 12).

Defendant, however, points to other portions of the same testimonial submissions to argue that plaintiff proceeded with knowledge sufficient to defeat any claim of good-faith purchaser status. (NY St Cts Filing [NYSCEF] Doc Nos. 104; 82 at page 39 line 14 through 40 line 11). Defendant emphasizes that Shah admitted he knew, before the closing, that the property had been the subject of a foreclosure action, that he had discussed the matter with Iandolo, and that he vaguely recalled being told the bank could appeal. (NY St Cts Filing [NYSCEF] Doc No. 82 at page 39 line 14 through page 40 line 2; page 45 lines 14-18). Defendant also highlights testimony that, at the time of acquisition, Shah knew the written dismissal order then shown to him bore a 2022 date, after the September 2021 closing, and therefore did not yet exist as of the closing date. (see id at page 46 line 14 through page 47 line 2). Defendant additionally relies on Iandolo's testimony that he discussed the potential for an appeal with Shah and that Shah understood issues could arise later "in appeal or things like that". (NY St Cts Filing [NYSCEF] Doc No. 83 at page 40 lines 11-22).

Defendant further contends that knowledge must be imputed to plaintiff through Iandolo, who defendant says represented plaintiff in the acquisition while also representing Scarso in the foreclosure litigation. Defendant relies on the February 26, 2021 letter from Iandolo to Justice Green requesting that the dismissal order be signed so Scarso could move forward with a mortgage refinance, and the March 11, 2021 responsive letter from foreclosure counsel opposing dismissal with prejudice, as proof that Iandolo knew the written dismissal order had not yet been signed and entered before the closing occurred. (NY St Cts Filing [NYSCEF] Doc No. 117). Defendant argues that plaintiff, having chosen to proceed through counsel possessing that knowledge, is chargeable with the same.

Plaintiff rejects that contention and asserts that what Shah and counsel knew was that the foreclosure action had been dismissed and that the expired notice of pendency no longer clouded title. (NY St Cts Filing [NYSCEF] Doc No. 85). Plaintiff's reply further insists that neither actual nor constructive notice of the mortgage, in the circumstances presented, defeats bona fide purchaser status where the foreclosure action had been dismissed, the notice of pendency had expired, no stay had been obtained, and plaintiff purchased in reliance on the state of title and the dismissal then in effect. (NY St Cts Filing [NYSCEF] Doc No. 119).

The parties agree that, on December 11, 2024, the Appellate Division, Second Department reversed the dismissal and reinstated the foreclosure action in Bank of NY, N.A. v Scarso, (233 AD3d 739 [2d Dept 2024]. Plaintiff emphasizes that this appellate reversal occurred more than three years after its purchase. Defendant emphasizes that the reversal restored the foreclosure action and confirms, in its view, that the mortgage remained a valid and enforceable encumbrance. Each side reads the effect of that reversal differently, but the chronology itself is not disputed.

III. Conclusions of Law

These motions require the Court to determine whether either movant has demonstrated entitlement to judgment as a matter of law under CPLR § 3212. On a motion for summaryjudgment, the proponent bears the initial burden of setting forth evidentiary facts to prove a prima facie case (see CPLR § 3212; Winegrad v New York Univ. Med. Ctr.,64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Only if the proponent meets this burden, will the burden shift [*3]to the party opposing summary judgment, who must then establish the existence of a material issue of fact, through evidentiary proof in admissible form, that would require a trial of the action (see Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent fails to make out its prima facie case for summary judgment, its motion must be denied, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

At the heart of both motions lies the question whether plaintiff was, on September 17, 2021, a bona fide purchaser for value of the subject premises. Plaintiff's memorandum correctly states that "[t]he term [bona fide purchaser] has been defined as one who purchases real property in good faith, for valuable consideration, without actual or record notice of another party's adverse interests in the property and is the first to record the deed or conveyance" (see Irwin v Regal 22 Corp., 175 AD3d 671 [2d Dept 2019]), and that such a purchaser takes title free and clear of adverse interests (see Panther Mtn. Water Park, Inc. v County of Essex, 40 AD3d 1336 [3d Dept 2007]). Plaintiff also correctly cites the proposition that, once established as a bona fide purchaser, such purchaser takes free of an adverse interest (see U.S. Bank N.A. v Jordan, 176 AD3d 1523 [3d Dept 2019]; Matter of Shau Chung Hu v Lowbet Realty Corp., 161 AD3d 986 [2d Dept 2018]).

Defendant, for its part, correctly invokes the correlative rule that one cannot claim bona fide purchaser protection where one takes with actual or constructive notice of a prior interest or with knowledge of facts that would lead a reasonably prudent purchaser to inquire further (see Chen v Geranium Dev. Corp., 243 AD2d 708 [2d Dept 1997]; Alaska Holdings, LLC v 214 Lafayette House, LLC, 177 AD3d 103 [1st Dept 2019]). Plaintiff itself quotes the same essential standard from Cencore Props., Inc. v Spitzer, 189 AD3d 983 [2d Dept 2020], namely, that the purchaser bears the burden of proving both valuable consideration and lack of knowledge of facts that would lead a reasonably prudent purchaser to make inquiry.

No meaningful dispute exists as to valuable consideration. Plaintiff paid $500,000.00, obtained a deed dated September 17, 2021, and recorded it in the chain of title. Defendant's motion papers, though vigorously contesting plaintiff's claimed innocence, do not seriously dispute that plaintiff was a purchaser for value in the ordinary sense. The controversy instead concerns the far more exacting question of notice.

Plaintiff's principal legal thesis is that, as of the date of closing, there was no valid notice of pendency and no stay, and therefore no legally operative notice capable of defeating plaintiff's status. Plaintiff relies first on the rule that "a notice of pendency that has expired without extension is a nullity" (see In re Sakow, 97 NY2d 436 [2002]) and that a lapsed notice of pendency cannot affect one who acquires an interest after expiration (see Polish Natl. Alliance v White Eagle Hall Co., 98 AD2d 400 [2d Dept 1983]). Plaintiff further relies upon Gordon v Barrett, 45 Misc 3d 1203 [A] [Sup Ct Kings County 2014], for the proposition that a lapsed notice of pendency in a subsisting action does not impart inquiry notice despite actual knowledge of the lapse itself. On the papers before the Court, this line of authority is well marshaled and directly well-placed to the narrow question whether the expired lis pendens itself furnished constructive notice. It did not.

Plaintiff then broadens the argument and contends that knowledge of a pending appeal is likewise legally insignificant absent a valid notice of pendency. For that proposition plaintiff relies upon Da Silva v Musso (76 NY2d 436 [1990]), which held that a purchaser's actual knowledge of a pending appeal is not legally significant in the absence of an outstanding valid notice of pendency, and that the owner's ability to transfer clear title remains unimpaired. Plaintiff also relies on 425 E. 26th St. Owners Corp. v Beaton, 128 AD3d 766 [2d Dept 2015], and Singh v Ahamad, 154 AD3d 683 [2d Dept 2017], which plaintiff cites for the proposition that even actual knowledge of the [*4]pendency of an appeal does not vitiate the good faith of a purchaser for value where no notice of pendency remains in place. Plaintiff's submission is strengthened further by Yesmin v Aliobaba, LLC, 241 AD3d 9 [2d Dept 2025], which plaintiff invokes through Da Silva to argue that, once property has passed to a purchaser in good faith and for value, CPLR § 5523 limits the remedy upon appellate reversal to value or purchase price rather than return of the property itself.

Defendant's motion, however, proceeds from a different perspective. Defendant does not materially dispute the abstract rules governing expired notices of pendency or unstayed appellate reversals. Rather, defendant contends that those rules do not resolve this controversy because plaintiff bought with actual notice of the mortgage and foreclosure and therefore never attained bona fide purchaser status in the first place. Defendant rests substantially on Morequity, Inc. v Centennial Ins. Co. (201 AD3d 929 [2d Dept 2022]) and 1077 Madison St., LLC v Dickerson (197 AD3d 446 [2d Dept 2021]), for the proposition that a purchaser who takes title after a notice of pendency lapses, but with actual knowledge of the mortgage and foreclosure action, is nonetheless bound by the proceedings in that action. Defendant thus says plaintiff's argument improperly conflates the nullity of the expired lis pendens with the distinct question whether plaintiff had actual or inquiry notice of the prior mortgage and claim against the property.

That distinction is substantial, and it precludes a simple resolution. The papers do not present a pure question of law on an undisputed factual basis. They instead reveal a dispute over what, precisely, plaintiff knew, what that knowledge legally signified, and whether the state of affairs known to plaintiff was sufficient, under the authorities cited by both sides, to strip plaintiff of good-faith purchaser status as a matter of law.

To be sure, certain matters are plain. Plaintiff indisputably knew before closing that there had been a foreclosure action. Plaintiff also indisputably knew that the property had previously been encumbered by the mortgage being foreclosed. Shah testified as much, and plaintiff's own briefing does not deny awareness of the foreclosure action's existence; instead it insists that what plaintiff knew was that the action had been dismissed and that the mortgage no longer encumbered the property. Defendant, in turn, points to testimony that Shah understood the bank could appeal, and that Iandolo discussed appellate risk with him.

Yet the governing authorities, as supplied by the parties themselves, make equally plain that mere knowledge of an appeal, standing alone and absent a notice of pendency, is not legally fatal (see Da Silva v. Musso, 76 NY2d 436 [1990]; Singh v Ahamad, 154 AD3d 683 [2d Dept 2017]). Thus, defendant cannot prevail merely by showing that plaintiff knew the bank might appeal. Something more must be shown: namely, that plaintiff had such actual or inquiry notice of a continuing enforceable adverse interest as would defeat good faith notwithstanding the dismissal and the lapse of the lis pendens.

On that crucial point, the submissions do not permit summary resolution in defendant's favor. Plaintiff has adduced proof that Shah was told by Scarso's foreclosure counsel that the foreclosure action had been dismissed and that the mortgage no longer encumbered the property; that he was furnished the transcript of the oral proceedings and the dismissal decision; and that he sought a second legal opinion that confirmed that understanding before purchasing the property for $500,000.00. If accepted, those facts could support a conclusion that plaintiff acted in good faith reliance upon a judicial dismissal and the absence of any active lis pendens or stay. Plaintiff also cites Bank of Am., N.A. v Snyder (154 AD3d 671 [2d Dept 2017]), and Beltway Capital, LLC v Soleil, (175 AD3d 451 [2d Dept 2019]), for the proposition that a bona fide purchaser for value may be protected where it detrimentally relies upon an erroneous discharge or analogous state of title. [*5]Plaintiff additionally relies on U.S. Bank Trust, N.A. v Bank of Am., N.A. (236 AD3d 712 [2d Dept 2025]), for the proposition that, in the absence of a stay or an outstanding notice of pendency, title of a purchaser in good faith and for value is insulated from the effects of an appellate reversal. These authorities furnish a substantial legal basis for its position.

But neither can plaintiff prevail as a matter of law. Defendant's submissions raise material questions as to whether plaintiff's asserted reliance was, under all the circumstances, reasonable and legally sufficient. Defendant points to the 2021 correspondence showing that Iandolo knew the written dismissal order had not yet been signed and entered before the closing; to testimony that Shah understood the possibility of appeal; to testimony that Shah did not review the broader foreclosure file beyond the transcript shown to him; and to the title-policy materials defendant says disclaimed coverage absent discontinuance of the foreclosure, vacatur of judgment, and cancellation of the lis pendens by court order. Defendant also invokes the doctrine of imputation through counsel (see Center v Hampton Affiliates, Inc., 66 NY2d 782 [1985]; Slattery v Schwannecke, 118 NY 543 [1890]) to argue that plaintiff is chargeable with Iandolo's knowledge that the written order had not yet been entered and that appellate deadlines had not even begun to run.

This Court cannot, on these papers, determine as a matter of law whether the knowledge attributable to plaintiff amounted to disqualifying notice of a present adverse interest, or instead amounted only to awareness of litigation that had been dismissed and that, under the authorities cited by plaintiff, did not prevent transfer of clear title in the absence of a valid notice of pendency and stay. The answer depends upon evaluations of the content of conversations, the reasonableness of reliance, the import of counsel's dual roles, and the legal significance of plaintiff's awareness that the written dismissal order post-dated the closing even while the action had already been dismissed on the record. Those matters cannot be resolved summarily.

Nor does defendant's invocation of first-in-time record priority under Real Property Law §§ 266 and 291, and cases such as Alliance Funding Co. v Taboada, 39 AD3d 784 [2d Dept 2007], suffice to compel dismissal as a matter of law. Those principles govern priority in a race-notice system, but they do not eliminate the need to resolve the antecedent issue whether plaintiff attained the status of a protected bona fide purchaser under the unusual sequence of events here, namely: oral dismissal of the foreclosure action, no stay, expiration of the notice of pendency, purchase by plaintiff, later entry of the written dismissal order, and still later appellate reversal. By the same token, plaintiff's reliance on Baccari v De Santi (70 AD2d 198 [2d Dept 1979]), and Wachovia Bank, N.A. v Swenton 133 AD3d 846 [2d Dept 2015], while substantial, does not eliminate every factual issue as to the quality and sufficiency of notice possessed by plaintiff at the time of closing.

Accordingly, neither motion may be granted. Plaintiff has not established, as a matter of law, that it lacked actual, imputed, or inquiry notice sufficient to attain bona fide purchaser status beyond factual dispute. Defendant, conversely, has not established, as a matter of law, that plaintiff's knowledge was so conclusive and disqualifying that dismissal of the amended complaint is required without trial. The competing authorities cited by the parties do not cancel one another out; rather, they illuminate why the decisive issue is fact-sensitive on this particular procedural and transactional history.

IV. Conclusion and Decretal Paragraphs

Accordingly, it is

ORDERED that plaintiff's motion for summary judgment, Motion Sequence No. 004, is DENIED; and it is further

ORDERED that defendant Bank of America, N.A.'s separate motion for summary judgment dismissing the amended complaint, Motion Sequence No. 005, is DENIED; and it is further

ORDERED that the action shall continue on the remaining issues raised by the amended complaint and the answer thereto; and it is further

ORDERED that the parties shall appear for such further proceedings as the Court shall direct.

This constitutes the Decision and Order of the Court.

Dated: April 22, 2026

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT