Layton v Layton 2010 NY Slip Op 31381(U) June 4, 2010 Supreme Court, Suffolk County Docket Number: 31853/2007 Judge: Paul J., Jr. Baisley Republished

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1 Layton v Layton 2010 NY Slip Op 31381(U) June 4, 2010 Supreme Court, Suffolk County Docket Number: 31853/2007 Judge: Paul J., Jr. Baisley Republished from New York State Unified Court System's E-Courts Service. Search E-Courts ( for any additional information on this case. This opinion is uncorrected and not selected for official publication.

2 [* 1] SHORT FORM ORDER INDEX NO /2007 SUPREME COURT - STATE OF NEW YORK DCM-J - SUFFOLK COUNTY PRESENT: Hon. Paul J. Baisley, Jr. JOSE I. LAYTON Plaintiff(s), ORIG. RETURN DATE: March 14,2008 FINAL RETURN DATE: May 1,2008 MTN. SEQ. #: 001-MotD -against- MARTA R. LAYTON, JERYL L. DELLAROCCA, M&T BANK CORPORATION, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., CHASE HOME FINANCE LLC., DAVIS & PRAGER, P.C. TICOR TITLE ABSTRACT OF NEW YORK, INC., ala/ TICOR TITLE AGENCY OF NEW YORK, INC., a/ma TICOR TITLE: INSURANCE and DOES Defendant(s). DEFT'S ATTORNEY for Jervl L. Dellar(w: JOHN N. FATH, ESQ. 629 ROUTE 112, SUITE 7 PATCHOGUE, N.Y PLTF'S ATTORNEY: SANFORD SOLNY, ESQ. 150 BROADWAY, STE 1600 NEW YORK, NY DEFT'S ATTORNEY for Davis & Prazer, PC : KAUFMAN, BORGEEST & RYAN, ESQS 99 PARK AVENUE, 19TH FLOOR NEW YORK, NY DEFT'S ATTORNEY for Ticor Title Abstract of New York : WEBER LAW GROUP LLP 290 BROAD HOLLOW RD, STE 200E MELVILLE, N Y DEFT'S ATTORNEY for M&T Bank: SIMMONS JANNACE, LLP 115 EILEEN WAY, STE 103 SYOSSET, N Y DEFT'S ATTORNEY for Marta T. Layton: MARINO & BERNSTEIN ESQS. 575 MADISON AVE, 1 0TH FL NEW YORK, NY Upon the following papers numbered 1 to 50 read on this motion: Notice of Motion and supporting papers 1-17; Memorantluin of Law in Opposition 18-30; Affirmation in Response and supporting papers ; Reply Affiriiiatioii 35-46; Affirination in Response to Reply Affirmation (Sur-Reply) 47-50; it is, ORDERED that the motion (001) by the defendant Davis 8L Prager, P.C. for dismissal of the complaint as to them pursuant to CPLR 321 l(a)(l) and (a)(7) is granted pursuant to CPLR 321 l(a)(7) and the second, third and fourth causes of action in the coniplaint are dismissed only as to the defendant Davis & Prager, P.C.; and it is further

3 [* 2] Page 2 Index No /2007 ORDERED that the defendant Jlavis & Prager, P.C. is severed from this action; and it is further ORDERED that in view of the dismissal of the pertinent causes of action in the complaint as to the defendant Davis & Prager, P.C., the claims asserted against said defendant in the cross claims contained i ii the answer on behalf of the defendant M&T Bank Corporation shall be deemed a third-party action by M&T Bank Corporation as the third-party plaintiff against Davis & Prager, P.C. as the third-party defendant upon the condition that the third-party plaintiff pays any fees required for the filing of a third-party action in accordance with CPLR 1007; and it is fiirther ORDElPED that the deemed third-party action is deemed served upon Davis & Prager, P.C. and Davis & Prager, P.C. has until 45 days of the date of entry herein to respond to same; and it is further ORDERED that counsel for the defendant Davis & Prager, P.C. is directed to serve upon the other parties appearing and remaining in this action respective copies ofthis decision and order in accordance with CPLR 2 103(a) within 45 days of the date of entry herein and to file proofs of service with the Clerk of the Court; and it is further. ORDERED that, pursuant to 22 NYCRR 202.8(f), the parties appearing and remaining in this action and third-party action are directed to appear for a preliminary conference on June 9, 2009 at the Supreme Court, DCM Part, Room A362, One Court Street, Riverhead, New York at 1O:OO a.m. This is an action in which the plaintiff is seeking to void an allegedly fraudulent deed, to quiet and restore title, to (cancel a mortgage and for damages. The folliowing information is contained in the complaint (verified by counsel and not by the plaintiff): The plaintiff Jose I. Layton (hereinafter Jose) owned a home with his wife, the defendant Marta R. Layton (hereinafter Marta). Marta and Jose are in the midst of a pending divorce action (Suffolk County index no /06). On February 2 I, 2007, a closing was held for the purpose of transferring title in the home from Jose and Marta to Marta alone. In addition, a second mortgage was to be taken simultaneously with the transfer of title with the funds payable to Marta. Present at the closing were Ira C. Prager, Esq. of Davis & Prager, P.C. (hereinafter D&P) as settlement agent for the lender, the defendant M&T Bank Corporation (hereinafter M&T); the defendant Jeryl L. Dellarocca as title closer for the defendant Ticor Title Abstract of New York, Inc. ; the defendant Marta and an unknown individual posing as Jose (hereinafter the imposter). The imposter, who represented that he was Jose and produced two items ofphoto identification (both expired), to wit:, a driver s license and an employment ID, signed the new deed transferring Jose s interest in the subject property to Marta.

4 [* 3] Page 3 Index No l2007 It is alleged that Marta knew and was responsible for this deceit. As to D&P, the plaintiff Jose claims that D&P was negligent in accepting expired items of identification and, thus, was responsible to Jose for damages suffered as a result of the perpetrated fraud on the bases of negligence (second cause of action), professional negligenceaega1 malpractice (third cause of action) and breach of fiduciary duties (fourth cause of action). The defendant D&P brings this pre-answer motion to dismiss based upon documentary evidence (CPLR 3211[a][l]) and failure to state a cause of action (CPLR 3211[a][7]). It is not clear which documents are being relied upon by D&P but they appear to be the settlement statement which shows D&P as the settlement agent and a check to D&P made out on the D&P closing account for $ to cover attorney s fees of $ and $250 for deed preparation (according to M&T s list of disbursement checks authorized and approved by Marta). With regard to the failure to state a cause of action, D&P contends that it did not have an attomeyclient relationship with Jose and, accordingly a claim for legal malpractice cannot lie. In addition, since the regular negligence and breach of fiduciary duty claims are based upon the same allegations as the legal malpractice, if 1:he legal malpractice claim is dismissed for failure to state a cause of action, the other two claims must also be dismissed. In order to prevail on a motion to dismiss on the basis of documentary evidence (see CPLR [a][ l]), the admissible documents must conclusively resolve factual issues raised in the pleadings in favor of the moving party (see AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582,808 NYS2d 573 [2005]; New YorkSchools Ins. Reciprocal v Gagliotti Assocs., 305 AD2d 563, 759 NYS2d 372 [2d Dept Here the documents relied upon do not conclusively establish that D&P had no attorney-client relationship with Jose. While the documents may show an attorney-client relationship with M&T, they do not rule out a similar relationship in whole or in part with Jose. Accordingly, since the documents do not conclusively resolve this issue in favor of D&P, dismissal does not lie pur,suant to CPLR (a)( 1). Turning now to D&P s argument with regard to the failure to state a cause of action, it is well settled that in considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court s role is limited to determining whether a cause of action is stated within the four corners of the complaint, and not whether there is evidentiary support for the complaint [citations omitted] (Frank v Dazrnlev Chrysler Corp., 292 AD2d 118, 121, 741 NYS2d 9, 12 [l Dept 20021, Iv denied 99 NY2d 502, 752 NYS2d 589 [2002]). In addition, the pleading is to be afforded a liberal construction (CPLR 3026), and the court should accept as tiue the facts alleged in the complaint, accord the plaintiff the benefit of every possible inference, and only determine whether the facts, as alleged, fit within any cognizable legal theory [citations omitted] (Id.+ at , 12). Affidavits submitted by the moving party (as contrasted to affidavits by the opposing party plaintiff) in support of such a motion which,

5 [* 4] Page 4 Index No /2007 Do no more than assert the inaccuracy of plaintiffs allegations, may not be considered, in the context of a motion to dismiss, for the purpose of determining whether there is evidentiary support for the complaint [see Rovello v OroJno Realty Co., 40 NY2d 633, 357 NE2d 970, 389 NYS2d 3 141, and do not otherwise conclusively establish a defense to the asserted claims as a matter of law [see Leon v Martinez, 84 NY2d 83, 88, 638 NE2d 5 11,614 NYS2d 972 (1994)l (Tsimerman v Jcinofl40 AD3d 242, 835 NYS2d 146, 147 [1 Dept 20071). In order to sustain a cause of action for negligence, the party alleging negligence must allege that the defendant owed a duty to the plaintiff, that the duty was breached and that there was an injury resulting from the breach (see Solomon v. New York, 64 NY2d 1026, 1027,499 NYS2d 392 [ 19851). Moreover, in order to sustain a cause of action for legal malpractice, the party alleging legal malpractice must show that the attorney failed to exercise the degree of care, skill and diligence commonly possessed by members of the legal community; that the attorney s conduct was the proximate cause of the plaintiffs loss; that the damages were sustained as a direct result of the attorney s actions; and, that the plaintiffwould have otherwise been successful but for the attorney s negligence ifthe attorney had exercised due care (seelcwana v Pearson & Shapiro, 43 AD3d 11 11,843 NYS2d 143 [2d Dept 20071; Town ofnorth Hempstead v Winston & Stvawn, LLP, 28 AD3d 746, 748, 814 NYS2d 237,239 [2d Dept 20061). In the absence of a duty being owed, there can be no breach and, thus, no liability (see Pulku 1) Edelman, 40 NY2d 78 1,782,390 NYS2d 393 [ 19761). Such a duty must be evidenced by actual privity on the basis of a contract (such as a retainer agreement) or a relationship so close as to approach that of privity [citations omitted] (Prudential Ins. Co. v Dewey Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 590 NYS2d 83 1 [ 1% 11). The plaintiffs mere belief that an attorney is representing him or her does not confer client status upon the plaintiff (see Gr@n v Anslow, 17 AD3d 889, , 793 NYS2d 615 [3d Dept 20051); there must be evidence of a higher degree of trust than an ordinary business relationship (see Solon& v Bavnsh, 225 AD2d 996,998,639 NYS2d 561 [3d Dept 19961). In this regard, the Court finds that the affirmation submitted in support of this application by Ira C. Prager, Esq. along with the documents submitted on this motion do conclusively resolve the issues raised with regard to the duties and responsibilities owed to the plaintiff in terms of a legal malpractice claim as well as the relaled claims of negligence and breach of duty. It is clear on the record before the Court that D&P had no relationship with Jose and, indeed, Jose was not even in attendance at the closing and, thus, cannot claim to have relied on any actions by D&P (see Parrott v Coopers & Lybrand, L.L.P., 95 NY2d 479,484,718 NYS2d 709 [2000]). There is neither actual privity between Jose and D&P nor any allegations supporting a relationship so close as to approach that of privity (see Prudential Ins. Co. v Dewe-y Ballantine, Bushby, Pnlniev & Wood, 80 NY2d 377, 382, 590 NYS2d 831 [1981]).

6 [* 5] Page 5 Index No /2007 Indeed, the complaint is devoid of any allegations that D&P was aware that Jose relied on its services or that D&P s conduct evinced an understanding of Jose s reliance upon same (see Allimz Undenvritei.s Ins. Co. vlnndmnrkins. Co., 13 AD3d 172, 175, 787 NYS2d 15 [lst Dept 20041). In oppo,sition, the plaintiff Jose submits no affidavits from anyone with personal knowledge of the events and the (complaint itself, which though verified is not verified by Jose and, thus, lacks evidentiary value on this motion. In short, the defendant D&P has conclusively established that it had no attorney-client relationship with Jose and there is no basis for finding any privity between them. Accordingly, the causes of action claiming legal malpractice, negligence and breach of fiduciary duty are not supported in this action and are dismissed as provided herein. The defendant M&T submits an Affirmation in Response in which it does not oppose D&P s motion for dismissal of the applicable causes of action in the complaint but asks the court not to also grant dismissal of its cross claims against D&P. While such relief is not requested in the notice of motion, in reply to this affirmation D&P does, for the first time, make this request. This request, coming, in effect, by way of a sur-reply, is not timely and does not allow a full and proper response to same. In any event, I)&P offers no support for dismissing M&T s cross claims which, the Court notes., are contained in the answer from M&T which, it is not disputed, did have an attorney-client relationship with D&P. Lastly, although the complaint is dismissed as to D&P, the cross claims remain viable as to D&P. However, since D&P is no longer a party defendant in the main action, the cross claims are deemed a thirdparty action as provided herein. This coinstitutes the decision and order of the court. ON. P AIS& HON. PAUL J. BAISLEY, JR., J.S.C.