SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK

Transcription

1 SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK Present: HON. LAWRENCE J. BRENNAN Acting Justice Supreme Court x TIlAL PART: 52 MARTIN LEIBOWITZ -against- Plaintiff, NASSAU COUNTY INEX NO.: 10492/05 IMPRESSIVE HOMES, INC., MARK DAYAN, EMPIRE HOME SALES, INC., ASAF DROR, ESQ., JOHN DOE MORTGAGE BROKER, SUPEIlOR ABSTRACT CORP., MARTIN WEISS, BRADLEY P. WEISS, YOUNG, KLEIN & LONTOS, P.C., DREW R. LONTOS, ESQ., and UNITED GENERAL TITLE INSURNCE COMPANY MOTION DATE: 6/8/06 SUBMIT DATE: 7/6/06 SEQ. NUMBER 3 Defendants x The following papers have been read on this motion: Notice of Motion dated May 16, 2006 Attorney Affirmation in Opposition dated June 23, 2006 Affirmation in Reply dated June 29, 2006 Motion by Defendants, United General Title Insurance Company, Superior Abstract Corporation, Martin Weiss and Bradley P. Weiss (collectively referred to as "defendants ), for an Order pursuant to CPLR (a)(7) dismissing the complaint as against them is granted. Plaintiff commenced this action to recover damages for:

2 .'" (i) conspiracy to commit fraud; (ii) breach of fiduciary duty; (iii) breach of contract; (iv) breach of an escrow agreement; (v) legal malpractice; and (vi) to quiet title to certain real propert. These six causes of action are asserted against eleven defendants including Impressive Homes, Inc. ("Impressive ), the seller of the subject premises; Mark Dayan, a principal of Impressive; AsafDror, plaintiffs attorney; Empire Home Sales, Inc., the broker for the real estate transaction; Superior Abstract Corporation, Martin Weiss, Bradley P. Weiss and United General Title Insurance, the title company; and Young, Klein & Lontos, Drew R. Lontos, Esq., Impressive s counsel. F or a detailed statement of the facts, the Court refers to our prior Order dated March 22, Procedural Background By notice of motion dated September , Defendant, AsafDror Esq. ("Dror ), moved for an Order dismissing the complaint pursuant to CPLR 3211(a)(1) and (7). By notice of motion dated December , Defendants Impressive Homes, Inc. ("Impressive ), Mark Dayan ("Dayan ), Empire Home Sales, Inc. ("Empire ), and Young, Klein and Lontos, P. YK&L"), moved for an Order dismissing the first, third, fourth and sixth

3 .. causes of action set forth in the complaint. By Order dated March 22, 2006, this Court granted Dror s motion to dismiss the complaint, pursuant to CPLR 3211(a)(1) and (7), and granted the motion made by Impressive, Dayan, Empire, and YK&L, to dismiss the first, third, fourth and sixth causes of action. The aforementioned defendants now move to dismiss the entire complaint, pursuant to CPLR 3211(a)(7), notwithstanding that only the first second and sixth causes of action are asserted against them. In response plaintiff has not contested the merits of those portions of the defendants motion which seek to dismiss the third, fourth, fifth and sixth causes of action. Under these circumstances, this Court need only address the sufficiency of the first and second causes of action. In considering a motion to dismiss for failure to state a cause of action (see CPLR 3211 (a)07)), the pleading is to be liberally construed (see CPLR 3026) and the facts alleged must be accepted as true (Goshen Mutual Life Insurance Co. a/new York 98 NY2d 314, 326 (2002); Leon v Martinez 84 NY2d (1994). Moreover, a pleading is accorded the benefit of every possible favorable inference, and reviewed in terms of whether the facts as alleged fit within any cognizable legal theory (511 West 232 Owners Corp. Jennifer Realty Co. 98 NY2d 144 (2002); Leon

4 ., Martinez, supra at p ; see also Edmund International Business Machines Corp. 91 NY2d 949, 951 (1998); Pepe Tannenbaum, 279 AD2d 620 (2 Dept. 2001)). To the extent that the first cause of action sounds in fraud, the allegations therein are insufficient to satisfy the specificity requirements of CPLR 30 16(b) or the relevant case law. The complaint does not contain any allegations setting forth the alleged material misrepresentations or any damages resulting therefrom (see Cohen Houseconnect Realty Corp., 289 AD2d 277 (2 Dept. 2001); Black Chittenden 69 NY2d 665, 668 (1986); Baystone Equities Handel-Harbour 27 AD3d 231 (2006)). To the extent that the first cause of action alleges conspiracy to commit fraud, such cause of action should be dismissed. New York does not recognize civil conspiracy to commit a tort as an independent cause of action (Steier Schreiber 25 AD3d 519, Iv to app den. 6 NY3d 714 (2006); Ward City a/new York 15 AD3d 392, 393; Pappas Passias 271 AD2d ). Similarly, plaintiffs second cause of action which alleges a breach of fiduciar duty must fail. In considering whether a fiduciary relationship exists a court will look to whether a part reposed confidence in another and reasonably relied

5 Qn the other s superior expertise or knowledge (Sergeants Benevolent Ass n Annuity Fund Renck 19 AD3d 107 (1 st Dept. 2005), quoting Weiner Lazard Freres Co. 241 AD2d 114 (1 st Dept. 1998)). " ' If the parties * * * do not create their own relationship, courts should not ordinarily transport them to the higher realm of relationship and fashion the stricter liability for them (EBC L Inc. vgoldman Sachs Co. 5 NY3d 11 (2005) quoting Northeast General Corp. Wellington Advertising, Inc. 82 NY2d 158, 162 (1993)). Furthermore, a breach of fiduciary duty also requires a plaintiff to establish: (a) a breach by a fiduciary of an obligation owed to plaintiff; defendant' s knowing paricipation in the breach; and damages resulting therefrom (see Kaufman Cohen 307 AD2d 113 (1 st Dept. 2003); Louis Capitol Markets LP REFCO Group, Ltd., LLC 9 Misc.3d 283 (2005); see g. SCS Communications, Inc. Herrick Co., Inc. 360 F3d 329, 342 (2 Cir. N.Y. 2004)). The complaint fails to allege the existence of a legal duty owed to plaintiff that is independent of one that was created by contractual relationship between the parties. Any alleged duty owed to the moving defendants arises from the title insurance policy which insures against losses resulting from a defect in title. Furhermore, it is undisputed that the deed conveying title from Impressive to plaintiff was executed and

6 recorded, albeit late. As such, plaintiff has failed to demonstrate that he suffered any damages. In view of the foregoing determination, the complaint is hereby dismissed as against the aforementioned defendants. Dated: July 31, 2006 CE J. BRENNAN eme Court Judge ENTERE'D 'AUS II COUNTY aim's OPFICF