Bank of Am., N.A. v Ohebshalom
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Bank of Am., N.A. v Ohebshalom 2011 NY Slip Op 33393(U) December 13, 2011 Sup Ct, Nassau County Docket Number: 3824/11 Judge: Joel K. Asarch Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ------ ------ -- - - ---- -- -- - ------- - - - --- -------- ----- - -- ---- - -- -- - ----- --- -- - -- ------ - -- --- -- -- -- -- - --- - -- ------- - - --- -- [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: PART 17 - J( BANK OF AMERICA, N. A., Plaintiff DECISION AND ORDER - against - IndeJ( No: 3824/11 Motion Sequence No: 001 NADER OHEBSHALOM and CDMS, INC. Original Return Date: 07- 29- Defendants. --- - - J( PRESENT: HON. JOEL K. AS ARCH, Justice of the Supreme Court The following named papers numbered 1 to 6 were submitted on this Notice of Motion on August 26, 2011 : Papers numbered Notice of Motion , Affrmation and Affidavit in Support Affirmation and Affdavit in Opposition Reply Affirmation The motion 1 , Ban of America , N. A. (Ban of America), to dismiss the fourth by plaintiff through eighteenth affirmative defenses asserted in defendant Nader Ohebshalom s answer and the first through siJ(th counterclaims therein , and for a declaration of default against defendant CDMS INC. pursuant to CPLR 3215 is determined as hereinafter set forth. ACTUAL BACKGROUND Plaintiffs motion does not address defendant's first through third affirmative defenses , that his wherein defendant Nader Ohebshalom alleges that he never entered into an agreement signature is forged and that he signed the purported document under false pretenses. [* 2] Plaintiff, Bank of America , the assignee of a retail installment sales contract dated June 26 2009, brings this action to recover possession of a 2009 Rolls Royce Phantom Drophead Coupe (VIN # SCA2D685X9UX16370) from defendant CDMS , Inc. as buyer and defendant Nader as co- buyer , or alternatively, the balance due under the sales contract. Ohebshalom According to the complaint defendants defaulted under the terms of the contract by failing to make timely payment of principal 43. 87. and interest as of September 22 2010 , leaving a principal balance due and owing of $177, Claiming that he never entered into the purported retail installment contract (financing agreement) , defendant Nader alleged herein , and has paid the full purchase price of $449 000 for the vehicle Ohebshalom has answered the complaint asserting eighteen affrmative defenses and siJ( counterclaims. His defenses and counterclaims hinge on the claim that the signature on , sales installment contract , which purports to be his signature the retail and on which plaintiff relies , is fraudulent and/or was procured by fraud. Plaintiff, Bank of America , seeks dismissal of the fourth through eighteenth affrmative defenses and the siJ( counterclaims asserted in defendant Nader Ohebshalom affirmative defenses at issue, beginning with the fourth , include s answer. The respectively: fraud in the inducement respondeat superior accord and satisfaction , lack of privity between plaintiff and defendant Nader Ohebshalom , failure to join necessary/indispensable parties , statute oflimitations failure to state a cause of action , plaintiffs own breach of contract , waiver/estoppel , plaintiffs failure to mitigate damages , damages not caused by defendant Nader Ohebshalom, unjust enrichment , unclean hands , lack of personal jurisdiction and statute of frauds. The siJ( counterclaims assert claims sounding in: fraud in the inducement , conversion , constructive trust , negligent misrepresentation , fraud through forgery and fraud in eJ(ecution. [* 3] ANAL YSIS Pursuant to CPLR 3211 (b), a party may move for judgment dismissing one or more defenses Greco Christoffersen 70 AD3d 769, on the ground that a defense is not stated or has no merit. tive defense, the plaintiff bears the burden 771 (2 Dept. 2010). When moving to dismiss an affrm of demonstrating that the affirmative defense is without merit as a matter of law because it either does not apply under the factual circumstances of the case or fails to state a America, NA. v 414 MidlandAve. Associates, LLC 78 AD3d 746 748 (2 York Waste Servs. , LLC 34 AD3d 559 (2 Bank of defense. Dept. 2010); Vita New Dept. 2006). In reviewing a motion to dismiss an affirmative defense , the court must liberally construe the pleading in favor of the party asserting the Courthouse Corporate Ctr. defense and give that party the benefit of every reasonable inference. Schulman 74 AD3d 725, 727 (2 LLC Dept. 2010). The eighth , ninth and eleventh through eighteenth affirmative defenses , i. necessary parties , statute of limitations , plaintiff s own breach of contract , failure to join , waiver/estoppel , failure , unclean hands , lack of to mitigate damages , damages not caused by plaintiff, unjust enrichment jurisdiction and statute of frauds respectively, are pled as single sentences , and are totally bereft of any supporting factual data. They are , therefore , fatally deficient. Affirmative defenses which are pled as conclusions oflaw , and are not supported by facts , are insufficient and should be dismissed. Plemmenou Arvanitakis 39 AD3d 612 , 613 (2 Dept. 2007) abrogated on other grounds by Butler Catinella 58 AD3d 145 , 148 (2nd Dept. 2008). The fourth and fifth affirmative defenses , based upon the alleged fraud perpetrated by non- [* 4] party Paul Miler GT , Inc. d/b/a Bentley ofParsippany jure 2 (Paul Miller), an alleged and/or de facto agent of plaintiff Bank of America , which defendant Nader Ohebshalom claims acted in concert with defendant CDMS , Inc. , its president Rick Cohen and non- party North Shore Motor Group to perpetrate a fraud against him , are not viable. The record is devoid of any basis to defendant' s allegation that Paul Miler acted as an agent of plaintiff support Bank of America. In each of the counterclaims for fraud in the inducement , conversion , constructive trust negligent misrepresentation , forgery and fraud in the eJ(ecution respectively, as well as in the fourth and fifth affirmative defenses , defendant Nader Ohebshalom alleges that plaintiff Bank of America knew or should have known about the conduct of its agent Paul Miler , whom defendant claims functioned as the accomplice of Rich Cohen , the president of defendant CDMS , Inc. and CEO of North Shore Motor Group, Inc. , the dealership from which defendant Nader Ohebshalom purchased the Rolls Royce at issue herein. Defendant Nader Ohebshalom alleges that Paul Miler provided defendant CDMS , Inc. and Rick Cohen with all the necessar documentation for the fraudulent transaction herein , including but not limited to the purported retail installment contract documents which defendant asserts he did not sign. He further alleges that Paul Miler failed inter alia verify whether said defendant actually wished to finance the purchase of the subject vehicle. Under the theory of respondeat superior defendant Nader Ohebshalom seeks to hold plaintiff liable for the alleged fraud committed by Paul Miler and his agents , whom defendant claims According to the complaint , on or about March 30 , 2007 , plaintiff Bank of America and Paul Miler entered in a Retail Dealer Agreement , pursuant to which Bank of America would purchase retail installment contracts from Paul Miler which would then be assigned to Bank of authorized America. Defendant Nader Ohebshalom alleges in his answer that Paul Miler is an automobiles through a Bentley dealership in the business of marketing and sellng of Bentley , Inc. and system of authorized agents including North Shore Motor Group, defendant CDMS Rick Cohen. [* 5] deceived him into signing multiple documents relating to the purchase of the 2009 Rolls Royce Phantom Drophead Coupe without advising him that they were loan documents , and fuher represented to him (Nader Ohebshalom) that in consideration of his payments he would be the lawful owner of said vehicle free and clear of any and all liens. Since the relationship between Bank of America and Paul Miller is a contractual one governed by the terms set forth in the Retail Dealer Agreement , the counterclaims based on the theory of respondeat superior are unsustainable. The factual underpinnings of this case do not constitute a basis to impose liability on plaintiff Bank of America for the alleged fraudulent acts of respondeat superior. non- party Paul Miler under the doctrine of A legal entity necessarily functions through its officers , agents and employees whose respondeat superior. knowledge and conduct may be imputed to the entity under the doctrine of employer may not , however , be held accountable to third persons for the conduct of employees who, while ostensibly acting for their employer , in fact totally abandon the employer s interest and act entirely for their own or others ' purposes. Prudential- Bache Sec. , Inc. CWbank 73 NY2d 263 276 (1989). Under the doctrine of respondeat superior Fils-Aime committed by its agent within the scope of its agency. 918 (2 a principal is liable for the negligent acts Ryder TRS, Inc. 40 AD3d 917 Dept. 2007). A principal-agent relationship may be established by evidence that of the consent of one person to allow another to act on his or her behalf and subject to his or her control and consent by the other so to act." Maurilo Park Slope V-Haul 194 AD2d 142 , 146 (2 Dept. 1993). Paul Miler is neither an employee nor agent of plaintiff Bank of America. Plaintiff did not [* 6] supervise or control the work performed by Paul Miler nor did it act for plaintiff Ban of America at its request or under its direction for the Bank' s benefit. 26(G) of the Retail Dealer Agreement specifically provides as follows: Significantly, When acting under the Retail Agreement , Dealer shall be an independent contractor and not an agent or representative of Bank. Dealer is not granted any eJ(press or implied right to bind Bank in any maner whatsoever. Accordingly, the motion by defendant Bank of America to dismiss the fourth eighteenth affrmative defenses defendant , is granted to the extent that , and siJ( counterclaims asserted in the answer interposed by the fourth , fifth , eighteenth affirmative defenses are dismissed. The siJ(th eighth , ninth and eleventh through , seventh and tenth affirmative defenses alleging accord and satisfaction based on defendant Nader Ohebshalom the vehicle at issue through ' s alleged payment in full for , lack of privity between defendant and plaintiff Bank of America and the plaintiffs failure to state a cause of action, are continued , as are the first , second and third affirmative defenses which were not the subject of this motion. Even affording the allegations of the counterclaims asserted against plaintiff (Ginsburg Dev. Cos. , LLC Ban of Carbone 85 AD3d America the benefit of every favorable inference 1110 , 1111 (2 Dept. 2011)), the allegations of fraud in the inducement , conversion trust , negligent misrepresentation, fraud through forgery and fraud in the eJ(ecution , constructive are deficient in that they seek to hold plaintiff Bank of America liable for the alleged fraudulent actions of defendant CDMS , Inc. , Rick Cohen and Paul Miller based on the theory of absence of any such relationship. As such , they are hereby agency/respondeat superior in the dismissed. With respect to defendant CDMS, INC. , this corporation was served with the summons and complaint by service on March 31 , 2011 upon the Secretar of State pursuant to BCL 9306. More [* 7] than thirty days have elapsed since service was deemed complete and defendant CDMS , Inc. has failed to timely answer or otherwise move with respect to the complaint. Accordingly, the Court finds defendant CDMS, Inc. to be in default; however , as there has been no proof submitted that additional notice has been given to said defendant pursuant to CPLR 3215(g)( 4 )(i), entry of judgment is unavailable at this time. Cf CPLR 3215( c). This constitutes the Decision and Order of the Court. Dated: Mineola, New York December 13 2011 Copies mailed to: Stim & Warmuth , P. Attorneys for Plaintiff Wenger & Arlia , LLP. Attorneys for Defendant CDMS.. Inc. Defendant (in default) ENTERED DEC 15 2011 NASSAU COUNTY COWNTY CLaRK' S OFFICE
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