                            State of New York
                     Supreme Court, Appellate Division
                         Third Judicial Department
Decided and Entered: December 8, 2016                     522775
________________________________

RUSSELL E. COOPER,
                      Appellant,
     v

JAMES E. PULLAR et al.,
                    Defendants,               MEMORANDUM AND ORDER
      and

FIRST NIAGARA BANK, N.A.,
   Formerly Known as FIRST
   NIAGARA BANK, as Successor
   by Merger to HUDSON RIVER
   BANK AND TRUST,
                    Respondent.
________________________________


Calendar Date:   October 17, 2016

Before:   Egan Jr., J.P., Rose, Clark, Mulvey and Aarons, JJ.

                               __________


      Englert, Coffey, McHugh & Fantauzzi, LLP, Schenectady
(Peter V. Coffey of counsel), for appellant.

      Schiller, Knapp, Lefkowitz & Hertzel, LLP, Latham (Gary A.
Lefkowitz of counsel), for respondent.

                               __________


Aarons, J.

      Appeal from an order of the Supreme Court (Elliott III,
J.), entered June 26, 2015 in Rensselaer County, which, among
other things, granted a cross motion by defendant First Niagara
Bank, N.A. for summary judgment dismissing the complaint against
it.
                              -2-                522775

      In 1999, plaintiff and his wife entered into a lease with
defendants James E. Pullar and Doris E. Pullar to rent a
residential property located in the City of Troy, Rensselaer
County. This lease, which contained an option-to-buy provision,
was not recorded. In 2003, the Pullars sold the subject property
to defendant Samuel Barr, who obtained a loan from defendant
First Niagara Bank, N.A. (hereinafter defendant) secured by a
mortgage on the property. The mortgage was recorded in 2003.
Notwithstanding this sale, plaintiff and his wife remained
tenants of the property, continued to occupy the house and made
rental payments to Barr.

      After Barr failed to make payments due under the loan,
defendant commenced an action in 2011 to foreclose on the subject
property. While plaintiff and his wife were originally named as
defendants in the foreclosure action as "John Doe#1-#50" and
"Mary Roe#1-#50," respectively, they were served with process and
eventually the caption was amended to include their names in
place of the fictitious names. Plaintiff and his wife neither
appeared nor answered in the foreclosure action and a judgment of
foreclosure and sale was granted. Plaintiff subsequently
commenced this action seeking, among other things, to declare
defendant's mortgage on the subject property null and void.
Following joinder of issue, plaintiff moved and defendant cross-
moved for summary judgment. Supreme Court, among other things,
granted defendant's cross motion. Plaintiff now appeals.

      Even if we agreed with plaintiff that res judicata and
collateral estoppel were inapplicable, because defendant was
entitled to protection of New York's recording statutes, we
conclude that Supreme Court properly granted summary judgment in
defendant's favor. It is undisputed that plaintiff's lease with
the Pullars was not recorded. It is also undisputed that
defendant's mortgage with Barr was validly recorded. This appeal
therefore centers on whether defendant had a duty to further
inquire about plaintiff's claimed interest in the property.

      In asserting that defendant was required to make a further
inquiry, plaintiff relies on his possession of the property.
Indeed, actual possession of real estate generally gives notice
to all of the world of the existence of a right that a person in
                              -3-                  522775

possession may establish (see Wardell v Older, 70 AD2d 1008, 1009
[1979]). But, "[t]he possession that will be equivalent to
actual notice must be inconsistent with the title of the apparent
owner by the record" (Fekishazy v Thomson, 204 AD2d 959, 962
[1994] [internal quotation marks and citation omitted], appeal
dismissed 84 NY2d 844 [1994], lv denied 84 NY2d 812 [1995]; see
Ward v Ward, 52 AD3d 919, 921 [2008]; Berger v Polizzotto, 148
AD2d 651, 652 [1989], lv denied 74 NY2d 612 [1989]). Here,
plaintiff's mere possession and occupancy of the property with
his family did not give defendant notice of any conflicting
interest that plaintiff had in the property. In other words,
plaintiff's occupancy was wholly consistent with his rights as a
tenant under the lease given that he continued to live at the
property and paid monthly rent (see 10 Cardinal Lane, LLC v
N.K.T. Land Acquisitions, Inc., 117 AD3d 1133, 1134-1135 [2014];
Stracham v Bresnick, 76 AD3d 1009, 1011 [2010]; Tompkins County
Trust Co. v Talandis, 261 AD2d 808, 810-811 [1999], lv dismissed
93 NY2d 1041 [1999]; compare Mortgage Elec. Registration Sys.,
Inc. v Pagan, 119 AD3d 749, 753 [2014]). Under these
circumstances, no basis exists to void defendant's mortgage and,
thus, we find that Supreme Court properly granted defendant's
cross motion for summary judgment.

     Egan Jr., J.P., Rose, Clark and Mulvey, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
