We respectfully dissent.
The rather confusing, although undisputed, factual background of this case is as follows.
On September 2, 1975, Robert Clark (hereinafter decedent) acquired title to real property located in the Town of Catskill, Greene County, upon which was located the Sleepy Hollow Apartment complex (hereinafter the property). On November 22, 1978, William J. and Shirley E. Malik entered two judgments totaling in excess of $40,000 against decedent.1 However, a few days earlier, on November 7, 1978, decedent had executed, but did not deliver, a deed to the property to Dolores Clark (hereinafter Clark), his wife. Decedent continued to exercise exclusive control over the property until his death on March 3, 1981. Shortly thereafter, Clark’s brother happened to find the deed conveying the property to her among decedent’s personal possessions.
Clark caused this deed to be recorded on March 13, 1981, under the belief that doing so would put the property beyond the reach of the creditors of decedent’s estate. In February *2471982, Clark, together with other business associates, guaranteed a loan from respondent Key Bank, N. A. to 340 Main Street Corporation. In conjunction with guarantying the loan, Clark submitted a financial statement wherein, among a listing of numerous assets, she listed the subject property.
In April 1982, the Maliks petitioned Surrogate’s Court to have the conveyance from decedent to Clark set aside and declared null and void. The Maliks then filed a notice of pendency, indexed against Clark, both individually and as administratrix of decedent’s estate, in the Greene County Clerk’s office on April 23, 1982. Clark did not oppose the application to set aside the conveyance and, by order entered September 28, 1984, Surrogate’s Court ordered that: "the conveyance of real property from Robert H. Clark a/k/a Bob Clark, to Dolores Clark by Deed dated November 7, 1978, and recorded March 13, 1981, in Liber 508 of Deeds at Page 152, in the Greene County Clerk’s Office, shall be and hereby is set aside.”
In the meantime, based upon Clark’s guarantee of the loan to 340 Main Street Corporation, Key Bank obtained a judgment (entered Apr. 6, 1984 in Schenectady County) in the amount of $74,268.53 against her. A transcript of this judgment was subsequently filed on May 7, 1984 in the Greene County Clerk’s office. As judgment creditor of Clark, Key Bank, on September 11, 1984, served "a property execution against the real property [the property] owned by Dolores Clark”, and notice of a Sheriffs sale was published shortly thereafter. However, in a closing held on September 28, 1984, Clark, in her capacity as administratrix of decedent’s estate, conveyed the property to petitioner Timothy F. Myers.2 Petitioner Dime Savings Bank provided financing for this transaction secured by what purported to be a first mortgage on the property from Myers.
On October 24, 1984, petitioners commenced this proceeding for a determination as to their title and to prevent the sale of the property by Key Bank. In due course, Special Term ruled that Key Bank’s rights in the real property were prior to any rights petitioners might have in the property. Special Term thus ordered the Sheriffs sale of the property to proceed. This appeal by petitioners ensued.
No one disputes the factual assertion that the deed from decedent was never delivered. This being the case, the deed *248was void (43 NY Jur 2d, Deeds, §§ 55-56, 69, at 244-246, 258; 6A Powell, Real Property § 891, at 81-95) and, absent the majority’s finding of equitable estoppel, title passed directly from decedent’s estate to Myers. The application of the doctrine of equitable estoppel by the majority, however, creates title in Clark, thereby enabling Key Bank to have the property sold at a Sheriff’s sale in order to satisfy its judgment (see, CPLR 5201; Siegel NY Prac § 486, at 653). In our opinion, such use of equitable estoppel violates the settled rule that equitable estoppel "does not operate to create rights otherwise nonexistent” (21 NY Jur, Estoppel, § 17, at 23; see also, 21 NY Jur, Estoppel, §§ 18, 22, at 25, 28; cf. Matter of O’Neill v Regan, 114 AD2d 613, 614).
Key Bank is merely an unsecured creditor of Clark which may have relied upon a false listing of assets in the financial statement submitted to it by Clark. This erroneous listing cannot serve to create an interest in the property which Clark never had. Indeed, the implication of the majority’s holding is far-reaching. One could create an interest in property for himself by falsely asserting his ownership and having someone rely on the assertion. This, in our opinion, is simply not the role of equitable estoppel.
Moreover, even if equitable estoppel could be turned to, we would not find it binding upon Myers. Before closing on the property, he had an affidavit from Clark representing that the deed to her from decedent had never been delivered. Myers also relied on an order of Surrogate’s Court specifically setting aside the transaction to Clark.3 Based upon this information, petitioners could reasonably conclude that title to the property was never transferred to Clark. Finally, Key Bank has failed to submit evidence from any one with knowledge of the event that it relied on the representation of ownership contained in the subject financial statement. Key Bank’s attorney’s bald assertion is not sufficient to demonstrate reliance on Key Bank’s part.
Accordingly, we would reverse and grant the petition.4
*249Casey and Weiss, JJ., concur with Levine, J.; Mahoney, P. J., and Kane, J., dissent and vote to reverse in an opinion by Kane, J.
Order affirmed, with costs.
. Between 1976 and November 1978, numerous other judgments and tax warrants were entered against decedent:
. The deed was dated September 20,1984 and recorded October 3, 1984.
. No motion to reargue, to intervene or to vacate this order has ever been made. Further, no appeal has been taken from this order.
. Myers’ title would be subject to the numerous judgment creditors of decedent who had perfected their judgments.