Opinion
101316/2010
08-05-2011
Delia Paino and JOSEPH L. PAINO, Plaintiff(s), v. Kaiyes Realty, LLC, FEDERAL STANDARD ABSTRACT INC., FIDELITY NATIONAL TITLE INSURANCE CO., ANTHONY REITANO, DOMINICK ALI, ANTONINO "NICK" TAMBARELLO, VENETIAN DEVELOPMENT CONSTRUCTION SERVICE CORP., ITAL CREDIT CENTER, LLC., HOME ABSTRACT CORP., STEWART TITLE INSURANCE CO., CARLO SCISSURA, VINCENT F. SPATA, DENNIS LOBAITO, HARBOURVIEW ABSTRACT INC., AND CHRISTOPHER DAI, Defendant(s).
, J.
Plaintiffs, Delia and Joseph Paino, commenced this action on or about June 8, 2010, alleging, inter alia, that defendants committed fraud and conversion with respect to two allegedly fraudulent mortgage assignments. The Court notes that defendants Federal Standard Abstract Inc., Fidelity National Title Insurance Company and Stewart Title Insurance Company's motions to dismiss were granted on January 18, 2011. Presently, discovery is on-going and the parties are proceeding with depositions as scheduled by this Court. The instant motions are by defendants Christopher Dai and Harbourview Abstract, Inc., [hereinafter the "moving defendants"] who are each separately moving for summary judgment seeking to dismiss the complaint as against them.
Plaintiff's complaint pleads eight causes of action and surrounds the allegedly fraudulent assignment of two mortgages. The first cause of action surrounds broker commissions and is not alleged against the moving defendants. The remaining causes of action surround the title/mortgage of the property located at 1642 Bath Avenue, in Brooklyn, New York [hereinafter "the property"]. Plaintiff's contend that on September 15, 2006, they transferred the property to defendant Kaiyes Realty, LLC [hereinafter known as "Kaiyes"]. On that same date the plaintiffs obtained a purchase money mortgage on the property in the amount of $560,000.00 that was not recorded until February 28, 2008. Thereafter, on or about March 2009, defendant Antonio "Nick" Tambarello, at the request of co-defendant Dominick Ali, requested that plaintiffs sell the mortgage to obtain their funds immediately. Plaintiff's allege that they were fraudulently induced into signing "a sheaf[sic] of loose paper in black" (see Plaintiff's Ex. A) which was to be held in escrow by co-defendant Carlo Scissura until a full transaction could be consummated.
The Court notes it has limited its review of the alleged facts to those relevant to the moving defendants.
On March 20, 2009, the mortgage was assigned to defendant Ital Credit Center LLC, on which plaintiffs allege their signatures were fraudulently procured and/or forged. This assignment was recorded on July 6, 2009, by defendant Home Abstract. Plaintiffs contend that prior to that recording, on June 1, 2009, this mortgage was again assigned from defendant Ital Credit to defendant Dennis Lobaito. Regarding the moving defendants, it is undisputed that defendant Lobaito presented to attorney Christopher Dai's office seeking recording of the assignment from defendant Ital to defendant Lobaito which Mr. Dai agreed to perform. There is no dispute that there was no contract or retainer agreement between Mr. Dai and Mr. Lobaito and the only fees exchanged were for the costs of recording (approximately $47.00). Mr. Dai did not represent defendant Lobaito and did not charge for any legal services. Mr. Dai asked defendant Harbourview Abstract Inc., for assistance in recording the document in the Kings County Clerks Office, which it recorded. That encompasses the extent of facts surrounding the moving defendants.
Plaintiff contends (as its second cause of action) that,
the defendants, without authority, intentionally conspired to and did exercise control over the plaintiff's property, to wit, the Bath Avenue mortgage, thereby converting the mortgage to the defendants' own use and benefit and excluding the plaintiffs' ownership and possession, thereby causing the plaintiffs monetary damage.
Further, the plaintiff's third, fourth and fifth causes of action allege fraud, tortious inducement to breach a contract and conversion, respectively. The sixth cause of action relates to non-moving defendants Reitano and Spata for breach of fiduciary duty. The seventh and eighth causes of action request equitable relief in the form of vacatur/recission of the assignments and an injuction prohibiting transfer/sale of the property/mortgage pending determination by this Court.
With respect to the instant motions, summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and in this regard " the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon the party opposing the motion to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
The moving defendant, Mr. Dai has successfully established his prima facie entitlement to summary judgment on the plaintiff's complaint, in its entirety (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). Mr. Dai has established that his entire involvement in this action consisted of providing a former client the courtesy of recording a mortgage assignment. As he testified at his examination before trial, Mr. Dai did not represent defendant Lobaito with respect to the instant transactions, there was no retainer agreement between the parties, no fees for legal services were exchanged and Mr. Dai had no knowledge of the alleged fraudulent signatures and/or procurement of the assignment. The court notes that there is no evidence whatsoever of any fraud, conversion, or tortious inducement to breach of contract on the part of Mr. Dai (Tenenbaum v. Gibbs, 27 AD2d 722, 723 [2d Dept., 2006]; Anesthesia Assoc. of Mount Kisco, LLP v. Northern Westchester Hosp. Ctr., 59 AD3d 473, 476 [2d Dept., 2009]; Winter v. Brown, 49 AD3d 526, 529 [2d Dept., 2008]).
Mr. Dai did testify to representing Mr. Lobaito and his corporation (Exclusive Building Corp.) on prior occasions concerning his business and a personal family matter, all completely unrelated to the instant transactions.
In opposition, the plaintiffs have failed to raise triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The plaintiff's contentions that Mr. Dai represented defendant Lobaito in the instant transaction and was asked to perform a title search are unsupported by the evidence and testimony provided by the parties. Mr. Dai and Mr. Lobaito both testified unequivocally that Mr. Dai represented defendant Lobaito on a business transaction related to his business and mother-in-law, not related to the instant transactions at all. In addition, while Mr. Lobaito testified that he did not recall whether he asked Mr. Dai to perform a title search, Mr. Dai testified definitively that he was not requested to perform one and did not perform one. Plaintiff has presented no evidence to establish that a title search was performed at all, let alone by Mr. Dai. Mr. Dai's involvement in the instant transactions was limited to procuring the recording of the assignment. There was no retainer agreement or representation by Mr. Dai of defendant Lobaito in the instant transactions. As such, Mr. Dai is entitled to summary judgment in his favor and the plaintiff's complaint, as well as all cross-claims, are hereby dismissed as against him.
With respect to defendant Harbourview Abstract Inc., it has also established its entitlement to summary judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). Harbourview presented the affidavit of Kimberly Tomei, its President and Chief Executive Officer, who detailed Harbourview's involvement in the instant transaction as recording the assignment of the mortgage from defendant Ital Credit Center to defendant Lobaito, at the request of Mr. Dai. This is further supported by the testimony given by Ms. Tomei at her deposition where she testified that at the request of Mr. Dai she recorded the assignment in the Kings County Clerks Office. Harbourview, as a former licensed title insurance underwriter, did not issue any insurance in the instant transactions.
In opposition, again the plaintiff has failed to raise triable issues of fact (id.). Plaintiffs attempt at raising issues regarding preparation of the cover sheet or failure to notice a date inconsistency is irrelevant and misplaced. There is no evidence that Harbourview issued insurance or had any involvement in the instant transactions beyond recording the assignment from defendant Ital Credit to defendant Lobaito. Plaintiffs failed to establish evidence of any fraud, conversion, or tortious interference in a contract by Harbourview and as such, summary judgment is appropriate (Tenenbaum v. Gibbs, 27 AD2d 722, 723 [2d Dept., 2006]; Anesthesia Assoc. of Mount Kisco, LLP v. Northern Westchester Hosp. Ctr., 59 AD3d 473, 476 [2d Dept., 2009]; Winter v. Brown, 49 AD3d 526, 529 [2d Dept., 2008]).
Accordingly, it is
ORDERED that the defendant Harbourview Abstract, Inc.'s motion [005] for summary judgment is granted, and it is further
ORDERED that the defendant Christopher Dai's motion [006] for summary judgment is hereby granted, and it is further
ORDERED that the complaint and all cross claims against defendants Harbourview Abstract Inc. and Christopher Dai are hereby dismissed and it is further
ORDERED that the caption is amended to reflect the aforementioned, and it is further
ORDERED that all remaining parties are to appear for the previously scheduled conference on September 28, 2011, at 9:30 a.m., and it is further
ORDERED that the Clerk enter Judgment accordingly.
THIS IS THE DECISION AND ORDER OF THE COURT.
ENTER,
______________________________
Hon. Judith N. McMahon
Justice of the Supreme Court