By Renwick, J.P., Gische, Kapnick, Singh, JJ. 9821. Citimortgage, Inc., plf-res, v. Rafael Pantoja def, Ana Iris Salazar def-ap — Balfe & Holland, P.C., Melville (Lee E. Riger of counsel), for ap — Houser & Allison, APC, New York (Victoria R. Serigano of counsel), for res — Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about March 13, 2018, which, to the extent appealed from as limited by the briefs, granted plaintiff’s motion for summary judgment on its foreclosure complaint as against defendants Ana Iris Salazar, Bernice Collado, and Intervenida Salvador (the Salazar defendants), unanimously reversed, on the law, without costs, the motion denied, and plaintiff’s relief against the Salazar defendants limited to an equitable lien in the amount of the payoff of the prior valid lien held by Chase Mortgage Company. It is undisputed that nonparty Rapsil Corporation conveyed the same property to two different recipients, first, defendant Rafael Pantoja (who obtained a mortgage now owned by plaintiff, and, second, a bona fide entity that transferred it to the Salazar defendants. Pantoja is the principal of Rapsil. In a 2012 action by plaintiff’s predecessor in interest, ABN AMBRO, where the sole issue was lien priority (see ABN Amro Mtge. Group, Inc. v. Pantoja, 91 AD3d 440 [1st Dept 2012]), this Court held that ABN AMRO’s mortgage had priority over the MERS mortgage obtained by the Salazars, because it was recorded earlier in time. To the extent that a portion of the ABN AMRO mortgage proceeds had been used to satisfy a previous 1998 mortgage held by nonparty Chase, we held that ABN AMRO was entitled to recover under the doctrine of equitable subrogation. This Court issued no ruling addressing any party’s claim to title or the viability of any deeds. A 2016 action, brought by the Salazars against Pantoja, sought, inter alia, to quiet title and a judgment voiding the Rapsil-to-Pantoja deed. In our order on that appeal we held that the Salazars were not barred by doctrines of collateral estoppel or res judicata from challenging the Rapsil-to-Pantoja deed. We held that the Rapsil-to-Pantoja deed is “void as against all subsequent purchasers,” and affirmed Supreme Court’s declaration that the Salazars, not Pantoja, have an ownership interest in the property (Salazar v. Pantoja, 137 AD3d 511 [1st Dept 2016]). It remains undisputed that the Rapsil-to-Pantoja deed was not acknowledged and that it was not signed by an officer of Rapsil; rather it was only signed by “Rapsil Corporation.” These defects rendered the deed void and invalid on its face, making it ineffective to pass title from Rapsil to Pantoja. Since the Rapsil-to-Pantoja deed did not pass title, it was, and continued to be, void at its inception. Language in our 2016 order that the deed is void “as against all subsequent purchasers” is not inconsistent with our finding here that the deed was void at its inception. Where a deed is void and invalid on its face it conveys no title. Furthermore, “a lender who takes a mortgage to a property subject to a void deed does not have anything to mortgage, [making the] mortgage invalid as well” (Weiss v. Phillips, 157 AD3d 1, 10 [1st Dept 2017]). Consequently, plaintiff has, and is limited to, an equitable lien in the amount of the proceeds of the loan that were used to satisfy the prior mortgage lien recorded in 1998 (ABN AMRO Mtge. Group, Inc., 91 AD3d at 440-441). The Decision and Order of this Court entered herein on July 9, 2019 (174 AD3d 433 [1st Dept 2019]) is hereby recalled and vacated (see M-7117 decided simultaneously herewith). This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
By Friedman, J.P., Tom, Webber, Gesmer, Oing, JJ. 9981. PEOPLE, res, v. Benjamin Vializ, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Arielle Reid of counsel), for ap — Darcel D. Clark, District Attorney, Bronx (Lori Ann Farrington of counsel), for res — Judgment, Supreme Court, Bronx County (Alvin M. Yearwood, J.), rendered May 9, 2016, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 23 years to life, unanimously affirmed. The verdict was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury’s credibility determinations, including its evaluation of inconsistencies, and the witnesses’ explanations for these inconsistencies. We agree with defendant that the court should have permitted defense counsel to impeach a detective with his allegedly inconsistent hearing testimony about what one of the eyewitnesses had told the detective regarding the weapon used in the homicide. However, we find the error to be harmless (see People v. Crimmins, 36 NY2d 230, 237 [1975]). There is no significant probability or possibility that it affected the verdict, and in the context of defendant’s line of attack on the credibility of the eyewitness at issue, the particular impeachment of the detective that the court precluded would have not been unhelpful. Moreover, upon our in camera review of the disciplinary record of a testifying police officer, we find that the trial court correctly found the record to be nondiscoverable as not relevant to the defendant’s guilt or innocence or to the officer’s credibility and that, in any event, the record would not likely have affected the outcome of the verdict. Defendant’s argument that his right to a public trial was violated when, without the court’s knowledge or approval, police detectives asked some prospective trial spectators to show identification is unpreserved (see People v. Alvarez, 20 NY3d 75, 81 [2012], cert denied 569 US 910, 947 [2013]), as well as being unreviewable for lack of a sufficiently developed record (see People v. Kinchen, 60 NY2d 772, 773-774 [1983]), and we decline to review it in the interest of justice. As an alternate holding, we find no basis for reversal. Immediately after learning of this conduct, the court ordered it stopped, and this remedy was satisfactory to defense counsel, who noted that “everybody that we wanted to be here did come in.” No inquiry of any kind was requested, and as a result there is no evidence in the record that any potential spectators had either been excluded or deterred from seeking entry. The court providently exercised its discretion in admitting seven autopsy photographs (see People v. Stevens, 76 NY2d 833, 835 [1990]). These photographs were either relevant to material facts in issue, or at least were admissible to “illustrate, elucidate or corroborate” the Medical Examiner’s testimony (id. at 835), and they were not so gruesome or inflammatory that their prejudicial impact outweighed their probative value (see id.). We perceive no basis for reducing the sentence. This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
