Summary
affirming the dismissal of a complaint where plaintiff did not “allege any words or conduct by the title insurers that could have caused plaintiff to believe that their function involved more than the issuance of title insurance policies, such as might warrant holding them responsible for the misappropriated mortgage funds under the doctrine of apparent authority.”
Summary of this case from Fid. Nat'l Title Ins. Co. v. Cole Taylor BankOpinion
3699, 3699A.
Decided May 20, 2004.
Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered May 28, 2003, dismissing the complaint pursuant to an order which, in an action to recover funds that plaintiff lost in an alleged fraud perpetrated by a nonparty bankrupt corporation, granted motions by nine of the defendants-respondents to dismiss the complaint as against them for failure to state a cause of action, and order, same court and Justice, entered June 20, 2003, which similarly dismissed the complaint as against the two remaining defendants-respondents, unanimously affirmed, without costs.
Kirkland Ellis LLP, New York (Peter A. Bellacosa of counsel), for appellant.
Herrick, Feinstein LLP, New York (Paul Rubin of counsel), for Stewart Title Guaranty Company, Commonwealth Land Title Insurance Company, Lawyers Title Insurance Company, Transnation Title Insurance Company and Stewart Title Insurance Company, respondents.
Dollinger, Gonski Grossman, Carle Place (Joshua N. Krellen of counsel) and Piper Rudnick LLP, Baltimore, MD (Kathleen Ellis, of the Maryland Bar, admitted pro hac vice, of counsel), for First American Title Ins. Co. and First American Title Ins. Co. of New York, respondents.
Frydman LLC, New York (David S. Frydman of counsel), for Old Republic National Title Ins. Co., respondent.
Robinson Cole LLP, New York (Katherine C. Glynn of counsel), for Connecticut Attorneys Title Ins. Co., respondent.
Platzer, Swergold, Karlin, Levine, Goldberg Jaslow, LLP, New York (Stan L. Goldberg of counsel), for Chicago Title Insurance Company and Ticor Title Insurance Company, respondents.
Before: Tom, J.P., Sullivan, Williams, Lerner, Gonzalez, JJ.
Plaintiff's allegations that the title insurer defendants are responsible as principals for the master settlement agent's diversion of mortgage funds advanced by plaintiff is contradicted by the language of the underwriting agreements cited by plaintiff as illustrative of the supposedly expansive agency relationship ( see CIBC Bank Trust Co. v. Credit Lyonnais, 270 A.D.2d 138). Nor does plaintiff allege any words or conduct by the title insurers that could have caused plaintiff to believe that their function involved more than the issuance of title insurance policies, such as might warrant holding them responsible for the misappropriated mortgage funds under the doctrine of apparent authority ( see Countrywide Home Loans v. LaFonte, ___ Misc.3d ___, 2003 N.Y. Misc. LEXIS 127, *8). We have considered and rejected plaintiff's other theories of recovery.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.