        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1058
CA 15-01483
PRESENT: CARNI, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


ONEWEST BANK, FSB, PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

STEVEN D. SPENCER, ET AL., DEFENDANTS,
AND DONNA S. SPENCER, DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


HARRIS BEACH PLLC, PITTSFORD (JOHN A. MANCUSO OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

REID A. HOLTER, VICTOR, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Ontario County
(Frederick G. Reed, A.J.), entered February 2, 2015. The order, inter
alia, granted the cross motion of defendant Donna S. Spencer for
summary judgment dismissing all causes of action against her.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the cross motion in part
and reinstating the first, third, and sixth causes of action against
defendant Donna S. Spencer, and as modified the order is affirmed
without costs.

     Memorandum: In appeal No. 1, plaintiff appeals from an order
that, inter alia, granted the cross motion of Donna S. Spencer
(defendant) for summary judgment dismissing the complaint against her.
In appeal No. 2, plaintiff appeals from an order settling the record
on appeal.

     Addressing first the order in appeal No. 2, we agree with
plaintiff that Supreme Court erred in excluding from the record on
appeal the transcript of its bench decision. “The complete record on
appeal shall include . . . the decision, if any, of the court granting
the order or judgment” (22 NYCRR 1000.4 [a] [2]), as well as “ ‘any
relevant transcripts of proceedings before the [court]’ ” (Kai Lin v
Strong Health [appeal No. 1], 82 AD3d 1585, 1586, lv dismissed in part
and denied in part 17 NY3d 899, rearg denied 18 NY3d 878; see 22 NYCRR
1000.4 [a] [2]). Indeed, “trial courts have an obligation to the
litigants to provide a basis for their decisions” (Cellino & Barnes,
P.C. v Law Off. of Christopher J. Cassar, P.C., 140 AD3d 1732, 1735
[DeJoseph, J., dissenting]; see Corina v Boys & Girls Club of
Schenectady, Inc., 82 AD3d 1477, 1477 n). The record belies
defendant’s contention that the transcript in question did not
                                 -2-                          1058
                                                         CA 15-01483

constitute the basis for the court’s decision. Thus, inasmuch as our
rules mandate the inclusion of the court’s decision in the record on
appeal, we conclude that the court erred in excluding the transcript
of its bench decision (see Kai Lin, 82 AD3d at 1586). We therefore
reverse the order in appeal No. 2 insofar as appealed from and grant
plaintiff’s motion to settle the record in its entirety.

     With respect to appeal No. 1, we agree with plaintiff that the
court erred in granting those parts of defendant’s cross motion for
summary judgment dismissing the first and sixth causes of action, in
which plaintiff alleges in relevant part that it held an equitable
mortgage on defendant’s interest in a parcel of property and seeks
foreclosure. “The whole doctrine of equitable mortgages is founded
upon that cardinal maxim of equity which regards that as done which
has been agreed to be done, and ought to have been done” (Sprague v
Cochran, 144 NY 104, 114; see Canandaigua Natl. Bank & Trust Co. v
Palmer, 119 AD3d 1422, 1423). “ ‘[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’ ” (Canandaigua Natl. Bank & Trust
Co., 119 AD3d at 1424; see Tornatore v Bruno, 12 AD3d 1115, 1117).
Such intent must “clearly appear from the language and the attendant
circumstances” (Pennsylvania Oil Prods. Ref. Co. v Willrock Producing
Co., 267 NY 427, 434-435; see Canandaigua Natl. Bank & Trust Co., 119
AD3d at 1424).

     In support of her cross motion, defendant submitted an affidavit
in which she stated that she was an owner of the subject property, her
former husband was the only signatory to the note and mortgage
instrument, and she did not sign the note or the mortgage instrument.
The affidavit, however, contained no sworn statements regarding her
intent, or lack thereof, to create a mortgage on her interest in the
property. We thus conclude that defendant failed to meet her burden
of establishing as a matter of law that plaintiff does not hold an
equitable mortgage on defendant’s interest in the property inasmuch as
she “failed to establish that there was no intent by plaintiff and
[herself] to create a mortgage [encumbering] the [entire] property” at
the time the mortgage was executed (Village of Philadelphia v FortisUS
Energy Corp., 48 AD3d 1193, 1196).

     We also agree with plaintiff that the court erred in granting
that part of defendant’s cross motion for summary judgment dismissing
the third cause of action, for unjust enrichment. The elements of an
unjust enrichment cause of action are that (1) the defendant was
enriched; (2) the enrichment was at the expense of the plaintiff; and
(3) it would be inequitable to allow the defendant to retain that
which is claimed by the plaintiff (see Mandarin Trading Ltd. v
Wildenstein, 16 NY3d 173, 182; Canandaigua Emergency Squad, Inc. v
Rochester Area Health Maintenance Org., Inc., 108 AD3d 1181, 1183).
Here, we conclude that defendant failed to establish that she was
entitled to judgment as a matter of law with respect to the cause of
action for unjust enrichment (see generally Winegrad v New York Univ.
Med. Ctr., 64 NY2d 851, 853). Contrary to defendant’s contention, her
relationship to plaintiff is not too attenuated to sustain an unjust
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                                                         CA 15-01483

enrichment cause of action inasmuch as she is an owner of the property
on which plaintiff holds a mortgage (see generally Mandarin Trading
Ltd., 16 NY3d at 182).

     We therefore modify the order in appeal No. 1 by denying the
cross motion in part and reinstating the causes of action against
defendant for equitable mortgage and unjust enrichment.




Entered: December 23, 2016                      Frances E. Cafarell
                                                Clerk of the Court
