Matter of Fidelity Natl. Title Ins. Co. of N.Y. v Cuttino
2011 NY Slip Op 33078(U)
November 21, 2011
Supreme Court, New York County
Docket Number: 601682/09
Judge: Joan A. Madden
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SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY
JOAN A. MADDEN
WQhol.4 ? \ b ~ ( 0 3. 5
MOTION CAL. NO.
MOTION SEQ. NO.
The following papers, numbered 1 to
were read on this motion to/for-
Notlce of Motlonl Order to Show Cause - Affidavits
Answering Affidavits - Exhibits
NOV 28 2011
COUNTY CLERK‘S OFFICE
/ & % J=L
/ 4 & 4
[ ] FINAL DISPOSITION
[ ] NON-FINAL DISPOSITION
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: IAS PART 11
In the Matter of the Application of
FIDELITY NATIONAL TITLE INSURANCE
COMPANY OF NEW Y O N ,
JOAN MADDEN, J.:
‘OUNrV cLERws ~
F F , ~ ~
Plaintiff Fidelity National Title Insurance Company (“Fidelity”) moves for
summary judgment on the three causes of action in its complaint filed against defendant
Conte Cuttino (“Cuttino”). Cuttino opposes the motion, which is denied for the reasons
set forth below.
Fidelity is a title insurance company which insured title for nonparty Neville
Francois ((‘Francois’y), purchaser of the property located at 607 Van Siclen Avenue,
Brooklyn, New York (the “Property”). Cuttino was the record owner of the Property and
his mortgage agreement (the “Mortgage”) bad been assigned to Washington Mutual
Bank, F.A. (“WAMU”).
In this action, Fidelity seeks to recover money it paid to WAMU as a result of
Cuttino’s alleged misrepresentation to WAMU that the sale price for the Property was to
be $2 15,000.00, when in fact it was $270,000.00. Fidelity alleges that as a result of this
misrepresentation, WAMU agreed to accept the sum of $200,000.00 in a short sale’ as a
I A short sale occurs when a lender agrees to release the lien that is secured to the
property upon receipt of less money than is owed
full and complete payoff of the Mortgage, which originally totaled $225,5 19.83. Fidelity
claims, however, that at the closing, the contract of sale was modified to reflect an actual
sales price of $270,000.00, and in support of this contention submits the real estate
transfer tax forms for the Property (Guy Aff. 7 5 , Exhibit D).’
Based on the remitted short sale payoff to WAMU, Fidelity issued a fee policy
(the “Policy”) of title insurance to Francois which omitted the Mortgage as a lien on the
Property (Guy Aff. 7 5 ) . After receiving documentation from Cuttino showing an actual
sales price higher than the short sale price of $2 15,000 allegedly represented by Cuttino,
by letter dated November 6,2002, WAMU rejected the payoff totaling $199,250.00 and
returned a check amounting to $199.363.60 (Guy Aff. 7 6, Exhibit E). As a result, the
Mortgage remained a lien on the Property and Francois had a claim under the Policy with
Fidelity. Fidelity submits evidence, including a letter and a check to WAMU, that it then
paid WAMU $45,750 to satisfy the Mortgage and to prevent a loss under the Policy, an
amount Fidelity claims represented the balance due on the Mortgage plus interest.
Fidelity now seeks summary judgment and a money judgment on three causes of action
in its complaint for fraud, unjust enrichment, and money had and received.
Cuttino opposes this motion and submits his affidavit .in which he states that he
lacked knowledge of any misrepresentation that lead to Fidelity’s harm. He also states
that he did not receive any proceeds of the sale at closing. He explains that when he sold
his property it was in distress and that he was contacted by an individual he did not know,
TvLr. Adamson introduced Cuttino to a representative at Cobourn
Enterprises who recommended attorney Derrick G. Arjune (“Arjune”). Cuttino states that
In contrast, the HUD- 1 Settlement Agreement (the “Agreement”) submitted by Cuttino
states a final sales price of $280,000.00. Plaintiffs closiiig statement also indicates a
sales price of $280,000.00
he did not negotiate the sale and submits copies of checks showing that Arjune, Mr.
Adamson, and Cobourn Enterprises received money at the closing as well as another
individual who Cuttino states he does not know. Cuttino also submits evidence that
ArJune was disbarred effective August 7,2003.
On a motion for summary judgment, the proponent "must make a p i m a facie
showing of entitlement to judgment as a matter of law, tending sufficient evidence to
eliminate any material issues of fact from the case.. ." Winemad v, New Yark U niv.
Med. Center, 64 NY2d 85 1,852 (1 985). Once the proponent has made this showing, the
burden of proof shifts to the party opposing the motion to produce evidentiary proof in
admissible form to establish that material issues of fact exist which require a trial.
Alvarez v, Prospect Homital, 68 NY2d 320, 324 (1986). Under the standard provided
above, plaintiff is not entitled to summary judgment at this stage in the litigation.
To maintain a cause of action for fiaud, a plaintiff must allege a representation of
a material existing fact, falsity, scienter, justifiable reliance and damages. Callas v
Eisenberg, 192 AD2d 349, 350 (1st Dept 1993). Each of these essential elements must
be supported by factual allegations sufficient to satisfy CPLR 30 16 (b), which requires,
in a cause of action based on fraud, that "the circumstances constituting the wrong shall
be stated in detail." See Megaris Furs. Inc. v Gimbel Bros., Inc., 172 AD2d 209, 2 10 (1st
Dept 1991). Here, the fraud claim is based on allegations that Cuttino misrepresented the
final sales price of the Property to WAMU. Subsequently, Fidelity claims to have
detrimentally relied on Cuttino's alleged misrepresentation, leading to its pecuniary
Here, numerous issues of material fact exist, including whether Cuttino made
misrepresentations or omissions of material fact regarding a $2 15,000 purchase price to
either plaintiff Fidelity or to nonparty WAMU, and, if so, whether Cuttino knew it was
false when made. Accordingly, summary judgment on Fidelity’s fraud claim is not
Plaintiff also seeks summary judgment on its second cause of action for unjust
enrichment. To be entitled to recovery on this claim, a plaintiff must show that a
defendant received money belonging to or provided by plaintiff, defendant benefitted
from receipt of this money, and that under principles of equity and good conscience,
defendant should not be permitted to retain the benefit. Matter of Estate of Witbeck, 245
AD2d 848 (3rdDept. 1997).
Here, issues of fact exist, including whether Cuttino received the proceeds of the
sale at closing which preclude a grant of summary judgment on this claim.3 In
particular, Cuttino claims that the attorney who represented him in the sale, along with
several other agents, negotiated the short sale and received checks from the transaction.
Cuttino points to record evidence of attorney’s suspension and disbarment and his
ongoing investigation regarding attorney’s malfeasance, if any,regarding this
Moreover, while an unjust enrichment claim does not require that the party
enriched take an active role in obtaining the benefit (Aetna Cas. and Sur. 0.
Const, Corn., 207 AD2d 274 [lstDept. 1994]), at this early stage in the litigation prior to
any discovery, this court cannot conclusively find that defendant was unjustly enriched.
While Cuttino avers he did not receive a check, it must be noted that the closing
statement indicates cash to seller in the amount of $7,529.98.
The third cause of action is for money had and received. A cause of action for
money had and received is based on “an obligation which the law creates in the absence
of an agreement when one party possesses money that in equity and good conscience he
ought not to retain and that belongs to another.” Parsa v Sate of New York, 64 NY2d
143, 148 (1984) (citations omitted). Here, as indicated above, there are triable issues of
fact as to whether Cuttino obtained any proceeds from the sale. Accordingly, summary
judgment is not warranted with respect to this claim.
In view of the above, it is
ORDERED that Fidelity’s motion for summary judgment is denied, and it is
ORDERED that the parties shall appear for a preliminary conference on
December 15,201 1 at 9:30 AM in Part 11, room 351,60
NOV 28 2011
COUNTY CLERK’S OFFICE