On a summary judgment motion the court must view the evidence in the light mostfavorable to the party opposing the motion, giving that party the benefit of every reasonableinference and determine whether there are any triable issues of fact outstanding.
Branham v. Loews Orpheum Cinemas, Inc.
, 8 NY3d 931. The court must determine if the[*3]moving party's papers justify holding as a matter of law that the "cause of action or defensehas no merit."
Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co.
,168 AD2d 610 . It is well established that summary judgment is a drastic remedy thatshould not be granted where there is any doubt as to the existence of a material issue of factor where the issue is arguable.
Stillman v. Twentieth Century-Fox Film Corp.
, 3 NY2d 395.Initially, a summary judgment movant has burden to set forth evidentiary factssufficient to entitle that party to a judgment as a matter of law, tendering sufficient evidenceto eliminate any material issue of fact from the case, and that showing must be made by producing evidentiary proof in admissible form.
Santanastasio v. Doe
, 301 AD2d 511. Generally, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of itsclaim or defense.
Dalton v. Educational Testing Service
, 294 AD2d 462 .
The defendant, HSBC moves for dismissal on the grounds that the defendant's purported lien was not recorded at the time that HSBC took a mortgage on the subject property. HSBC asserts that it had no knowledge, actual or constructive of the purported lienand therefore a bona fide good faith purchasers/encumbrancers and that the mortgage whichthey hold has priority.
Plaintiff, in opposition to the motion contends that HSBC is not a bona fide purchaser in good faith because, as discussed above, the closing documents associated with the transfer of the property between Hemant and his daughters conflict. Plaintiff further asserts that thecontradiction between the documents raised HSBC's duty to inquire as to whether thetransfer was a fraudulent transfer designed to evade Hemant's creditors.This Court holds thatthe discrepancies in the closing documents were sufficient to put HSBC on notice to further inquire as to the bona fides of the transaction. No evidence has submitted that HSBCengaged in any additional investigation in light of the discrepancies. Rather, it seems thatHSBC simply pushed the documents through without the critical eye which is required inthese transactions. Gone are the days in which closing documents are merely meant to beshuffled and stacked. A lending institution has an affirmative duty to inquire into the bonafides of the documents, prior to taking mortgage[*4]on a property. If they fail in that dutytheir status as a bona fide purchaser is threatened.
Southwell v. Middleton
, 17 Misc 3d1129(A) [Sup. Kings. 2007].
Accordingly, the motion is denied.This constitutes the decision and order of the court.