Garcia v First Fid. Mtge. Group, LLC

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Garcia v First Fid. Mtge. Group, LLC 2011 NY Slip Op 33400(U) December 14, 2011 Sup Ct, Nassau County Docket Number: 600178/11 Judge: Karen V. Murphy 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] Short Form Order SUPREME COURT - STATE OF NEW YORK TRIAL TERM. PART 15 NASSAU COUNTY PRESENT: Murphv Justice of the Supreme Court Honorable Karen Ii MARI GARCIA, Index No. 600178/11 Plaintiff(s), Motion Submitted: 10/19/11 Motion Sequence: 001, 002, 003, 004 -againstFIRT FIDELITY MORTGAGE GROUP, LLC, FIRST FIDELITY MORTGAGE GROUP, L TD, FRANK LAGRIECA, JR., BLACKACRE TITLE AGENCY, DANEL B. GALGANO, GRIFEN D. FINLAY, APPRAISAL ONE AND HOME INSPECTION ONE, JAN BOIKE, BART D. KAPLAN, P. C., BART D. KALAN, JARED KALAN, Defendant(s). The following papers read on this motion: Notice of Motion/Order to Show Cause........................ Answering Papers.......................................................... Reply............................................................................. . Briefs: Plaintiff' slPetitioner ' s........................................ Defendant' s/Respondent' s.......................... ........... xxxx Motion by defendants Appraisal One and Home Inspection One , Inc. , s/ha Appraisal One and Home Inspection One and Jan Boike (hereafter collectively "Appraisal One ) for judgment pursuant to CPLR gg 3211(a)(5) and (7) dismissing the ammended (sic) complaint (hereafter " the amended complaint" ) is denied with leave to renew upon appropriate papers. Motion by plaintiff pursuant to CPLR g 3215(a) for default judgment against Appraisal One is granted as set forth below. [* 2] , Bart D. Kaplan , and Jared Kaplan (hereafter collectively " the Kaplan defendants ) for judgment pursuant to CPLR 3211(a)(5) and (7) dismissing the claims against them is granted pursuant to CPLR g Motion by defendants Bart D. Kaplan , P. 321 I (a)(5). Amended (sic) motion by plaintiff (hereafter "the amended motion tunc ) for nunc pro relief, costs and attorneys fees , and limited discovery is denied. According to the amended complaint, plaintiff and her son financed the purchase of their home in July, 2001 , for approximately $77 000 at a fixed interest rate of9%. In late 2004 plaintiff began receiving unsolicited calls offering a refinance package at a lower rate. On Apri114 , 2005 , plaintiff refinanced her mortgage based upon an allegedly fraudulentlyinflated appraisal and on terms that had been misrepresented to her. Plaintiff does not speak English and was allegedly intimidated into signing the closing documents. The loan adjusted within two years to an interest rate above 14%. According to plaintiffs attorney, plaintiff's home was fraudulently appraised at $160 000 , when its tre value was $135, 000 , and that the loan she was induced to accept in the amount of $117 865 stripped away her equity of 486. 67 (Bruno affirmation dated Sept. 12 2011 at par. 76). Plaintiff alleges that she began to experience difficulty in making payments when the interest rate was adjusted. She then attempted a further refinancing. In March, 2008 , plaintiff alleges that she was told she owned a " double wide " and not a " frame structure " as described by Appraisal One in the Boike Appraisal. She learned this through the later Ridgway Appraisal for Countryide Bank. It appears that at the time of the 2005 refinance her dwellng was compared to a "Ranch , Cape Cod and a Log Ranch in sales Comparisons instead of comparing her "Double Wide to other Double- Wides in the area " (Bruo affirmation dated September 12 2011 , at par. 83). Plaintiff was unable to refinance a second time , and a foreclosure action was commenced against her in November , 2009. According to plaintiff, the foreclosure action was dismissed because the original note could not be located. Plaintiff commenced this action by electronic filing on Apri115 , 2011. Her amended complaint contains eighteen causes of action against all individuals and entities involved in the closing of the 2005 refinance. Defendant Appraisal One moves for judgment dismissing the complaint pursuant to CPLR gg 3211(a)(5) and (7), notwithstanding the fact that it is admittedly in default in nor does (CPLR SOlS/aI/If). answering. It does not request an extension of time to answer it request leave to vacate its default 930l2/df), (CPLR [* 3] (Miceli v. State Farm 2d 379 (2004)). A 3d 725 , 726 , 819 N. 2d 995 , 786 N. Mut. Auto. Ins. Co. 3 N. dismissal motion pursuant to CPLR g 3211 must be made "before service of the responsive A motion to dismiss made after that date does not 32lllef). (CPLR pleading is required" (Holubar v. Holubar 89 A. D.3d 802 , 2011 operate to relieve a par' s default in pleading 2d 527 (2d Wenz v. Smith 100 A. 2d 585 , 473 N. WL 5433728 (2d Dept. , 2011); see McGee v. Dunn 75 A. D.3d 624 , 906 N. S.2d 74 (2d Dept. , 2010)). Dept. , 1984); Before the Court can consider dismissal ofthe complaint , Appraisal One must seek leave to Statutory time frames are not options; they are requirements vacate its default in pleading. Based on the foregoing, the motion by Appraisal One is summarily denied. Plaintiff seeks a default judgment against Appraisal One pursuant to CPLR g 3215. She submits proof of service on Appraisal One , but omits an affidavit of facts constituting her claims. Luckily for plaintiff, Appraisal One annexed a copy of the complaint to its opposition papers , and because it is verified , the complaint may be used as the affidavit of Plaintiff has met her burden for a default judgment on the issue of liabilty against Appraisal One. facts (CPLR 932lSUJ. Appraisal One opposes the motion based upon the various statutes of limitations. While such a defense may be meritorious , the unconfirmed assumption that a part is entitled v. State C. (Stracar Medical Services, P. to a first extension oftime to answer is unacceptable 2d 899 , 2008 WL 442576 (NY Farm Mut. Auto. Ins. Co. 18 Misc.3d 136(A), 859 N. App Term 2008)). Furthermore Appraisal One s belief that the Standards of Civilty (22 NYCRR 1200 , Appendix A) virtually guarantee it a first adjournment is a serious misunderstanding, and wil lead to sloppy pleading and wasteful motion practice. Of course this state has a strong public policy of resolving disputes on the merits 2d 536 (2d Dept. , 2011); 88 A. D.3d 992 , 931 N. Selinger Merchants Ins. Group v. Hudson Valley Fire Protection Co. Inc. 72 A. D.3d 762 , 898 (Zeccola , LLCv. Horowitz, 2d 242 (2d Dept. , 2010)), and whether to vacate a default is a matter addressed to the (Dimitriadis v. Visiting Nurse Servo of NY 84 A. sound discretion of the trial court 74A. 3d 1017 903 N. 2d691 (2dDept. , 2011); Gerdesv. Canales, 1150 923 N. 499 (2d Dept. , 2010)). Should Appraisal One move to vacate its default in answering on appropriate papers , that include an explanation of its law office failure or other reasonable excuse and its potentially meritorious defenses , within 15 days of service of a copy of this Order , the Court wil entertain such a motion. "" [* 4] Based on the foregoing plaintiff's motion for a default judgment is granted on the issue of Appraisal One s liability. for the purpose of correcting grammar; organization of issues and facts argued for the ease of readers; and In an Amended Motion plaintiff fies an " amended motion paper uploading exhibits , Table of Contents and Authorities, not done so with original fiing (Bruno affirmation dated September 12 2011 , at par. 2). The CPLR provides for no such amendments; multiple fiings create confusion and extra unnecessary work for the court and the other parties. relief is not clearly identified in her notice of motion. Buried in her attorney s affirmation (Bruno affirmation dated Sept. 12 , 2011 , at p. 40) Plaintiff's request for Nunc Pro Tunc plaintiff argues that due to " technical difficulty" she was unable to file her pleading electronically on April14 , 2011 despite hours of attempts. She complains that the Court Efiing records show a filing date of April15 , 2011 because that is the date when her payment was accepted , when in fact her action should have been fied on April 14 , 2011. relief in general is reserved for correcting irregularities in the entry of judicial mandates or like procedural errors and may not be wielded when third parties have (Gletzer v. Harris 12 N. Y.3d 468, 476, 909 nunc pro tunc 2d 386 (2009)). Such is the case here 2d 1224 , 882 N. relief sought by plaintiff would extend the limitations periods for various defendants and thereby alter their substantive rights. While the Court is not unmoved by the " lasting disabilties " suffered by plaintiff s attorney as a result of a " tragic collsion from a drunk driver " plaintiff is bound by the CPLR, as are all litigants. An action is commenced by fiing Should plaintiff choose to fie electronically, then she must comply with the (For the record , where "technical problems NYCRR 202. prevent fiing electronically, and a deadline for filing wil expire , service of a hard copy is relief NYCRR 202. finding the date of filing for purposes of commencement ofthis action to be April 14 , 2011 instead of April 15 , 2011 , is denied. Nunc pro tunc substantive rights in play that may be altered , in that the (CPLR 8304). b). rules for electronic filing (22 authorized (22 bldllllliif). Based on the foregoing, nunc pro tunc Plaintiff's request for costs and attorneys fees pursuant to 22 NYCRR 130. 1 is summarily denied at this time. There has been no showing that defendant's papers have been frivolous " within the meaning of22 NYCRR 130. Plaintiff's final request is for " limited discovery. " No basis for this request has been shown , and it is accordingly, denied. [* 5] Bart D. Kaplan , P. C. is the law finn that represented the lender on April14 , 2005, at the time of plaintiff's refinance of her mortgage. Plaintiff alleges that Bart Kaplan was the attorney who attended the closing and allegedly misled plaintiffto believe that "her interests were being protected" (amended complaint, par. 105). Jared Kaplan was the notary at the closing. Plaintiff alleges thirteen causes of action against Bart D. Kaplan, P. C. and Bart Kaplan. She alleges one cause of action against Jared Kaplan , for notarial misconduct. The Kaplan defendants move for judgment dismissing all claims against them pursuant to CPLR gg 3211 (a)(5) and (7). On a motion to dismiss pursuant to CPLR g 3211 , the facts as alleged must be accepted as true , the pleader must be accorded the benefit of every favorable inference , and the court must determine only whether the facts as alleged fit within any cognizable theory (Samiento v. World Yacht Inc. 10N. Y.3d 70 79, 883 N. 2d 990 854 N. S.2d 83 (2008); Steiner, Arnav Industries, Inc. Retirement Trust v. Brown, 2d688 (2001)). Dismissal is available LLP 96N. 2d300 , 303 , 751 N. 2d 936 , 727N. inter alia where the plaintiff has failed to comply with the appropriate statute of limitations. The criterion on a motion pursuant to CPLR g 3211(a)(7) Raysman, Millstein, Felder pursuant to CPLR g 3211(a)(5), (Leon v. Martinez, is whether the pleader has a cause of action 83, 638 N. 2d 511 614 N. 84 N. 2d 83 , 88 , 84 N. S.2d 972 (1994)). The following are the statutes of limitation for each of plaintiff s causes of actions: (1) breach of implied covenant of good faith and fair dealing - 6 years which begins 2l3(2); (Ely- Cruikshank Co., Inc. v. Bank of 2d 501 (1993); 81 N. 2d 399 , 403, 615 N. 2d 985 599 N. CPLR to run from the time of the breach Montreal), (2) breach of fiduciary duty seeking money damages only - 3 years - CPLR g 214(4); 213(1); both run from breach of fiduciar duty seeking equitable relief - 6 years - CPLR date of breach; Co. 12 N. Y.3d 132 , 140 907 2d 135 (2d (2009);Scottv. Fields 85 A. D.3d 756 , 925 N. (IDT Corp v. Morgan Stanley Dean Witter 2d268 , 879N. 2d 355 Dept. , 2011)); (3) constructive trust and unjust enrichment - CPLR g 213(1) - 6 years which runs (Coombs v. Jervier 74 A. D.3d from the occurrence of the wrongful act 2d 267 (2d Dept. , 2010), Iv app den 16 N. Y.3d 709 (2011)); 724 906 N. , not its discovery; (4) notarial misconduct - 6 years from date of execution; 635 868 N. 2d 118 (2d Dept. , 2008)); (Pericon v. Ruck 56 A. [* 6] common law fraud , fraudulent inducement , fraudulent concealment , civil conspiracy to commit mortgage fraud , and aiding and abetting fraud - 6 years from the fraud , or 2 years from the time the fraud was discovered , or reasonably could 2d 647 79 A. DJd 693 912 N. (5) unlawful kickback have been discovered (CPLR 213(8); Chung v. Wang, (2d Dept. , 2010)); (6) unconscionabilty - 6 years 48 N. 2d 813 , 399 N. 2d 1144 424 N. CPLR 213(2); 3S Park Ave. Corp. v. Campagna 2d 123 (1979)); years from time of execution of contract sought to be 2d 803 (2d 2l3(1); see Baratta v. Kozlowski 94 A. 2d 454 464 N. (7) undue influence - 6 rescinded- CPLR Dept. , 1983)); (8) violation ofGen Bus. Law 349 2l4(2); Gaidon v. Guardian Life Ins. Co. of Am. 96 N. 2d 30 (2001)). 727 N. accrues 3 years from time of violation 2d 201 , 209, 750 N. (CPLR 9 2d 1078 On this record , where plaintiff admittedly commenced this action six years and one day after the closing on the subject refinance , all of plaintiff's claims against the Kaplan defendants , that do not involve fraud, are untimely. In order to survive the limitations defense , plaintiff first argues that she is entitled to induced by fraud equitable tollng. Equitable estoppel wil apply when a plaintiff is (Zumpano v. Quinn , 6 misrepresentation or deception to refrain from 58 A. D.3d 603, 871 Y.3d 666, 849 N. E.2d 926, 816 N. 2d 647, Iv appdsmd 13 N. 2d 901 (2009)). All ofthe conduct at issue herein took place on or before the closing date of April 14 , 2005. No conduct has been alleged herein that any of the defendants took affirmative steps after the closing date to prevent plaintiff from commencing this action. fiing a timely action 2d 703 (2006), Jones v. Safi, Furthermore , a plaintiff may not rely upon the same acts that constitute the basis of (Ross v. Louise Wise Servs., Inc. 2d 509 (2007)). There must be some conduct Y.3d 478, 491 868 N. 2d 189 , 836 N. the substantive claim to support equitable estoppel (I d. on the part of the defendant after the initial wrongdoing; mere silence does not suffice Due dilgence on the part of the plaintiff is an essential element of the doctrine of (Simcuski v. Saeli 44 N. 2d 442 , 450 , 377 N. 2d 713 , 406 N. 259 (1978)). However this Court does not reach the question of due dilgence , because no equitable estoppel intentional concealment of the wrongful conduct at issue has been alleged. For the record plaintiff's attempts to compare her circumstances to that of non- English speaking prisoners [* 7] 555 U. cert den sub nom Diaz v. Conway, 515 F.3d 149, (2 Cir. 2008), 870 , 129 S. Ct. 168 , 172 L.Ed. 2d 121 , 77 USL W 3201 (2008)), including one who has been (Pabon v. Mahanoy, expressly denied access to Spanish language materials or a translator (Diaz v. Kelly, 654 F.3d 385 (3rd Cir. 2011)), are inapposite. Overall , no basis for equitable tollng in this action has been established. Plaintiff's follow-up argument is that the closing did not occur until Apri119, 2005. She bases this argument on copies of various checks representing loan proceeds that are dated April19, 2005. Apparently the loan funds continued to be dispersed until October 4 2005. However, disbursement of proceeds following a closing does not restart the limitations 2d 48 (1 Dept. (Avalon LLCv. Coronet Properties Co. 306 A. 2d 62 , 762 N. st period 2003), Iv app den 100 N. 2d 513 (2003)). Nor is the toll of a " continuous representation" until October , 2005 , available here because the amended complaint contains no cause of action for professional malpractice (see 750 N. E.2d 67 , 726 N. 365 (2001)), and fails to allege a mutual understanding of continued representation after the (Scott v. Fields, supra; see also McCoy v. Feinman 99 N. 2d 295, 306 , 785 2d 693 (2002)). 2d 714 , 755 N. generally Shumsky v. Eisenstein 96 N. 2d 164 , 167- 168 , closing As to the fraud claims , while the six year limitations period running from the date of the closing expired on April 14 , 2011 , the two year limitations period for discovery runs from the date on which the plaintiff possessed knowledge of facts from which the alleged fraud (Marasa v. Andrews 69 A. D.3d 584 could have been discovered with reasonable diligence Oggioni v. Oggioni 46 A. D.3d 646 (2d Dept., 2007)). Plaintiff's pleading (2d Dept. , 2010); provides: On or about March 2008 , an appraiser sent from a potential refinancing lender discovered that Plaintiff owned a double wide and not a frame structure as described by Defendant/s appraisal. This finding devalued her propert and consequently Plaintiff lacked the "L TV" ratio to support refinancing. (Amended complaint , par. 26). Her attorney now describes this March 2008 date as " typographical error: It should have read June 12 2008" (Bruno Affirmation dated October 17, 2011 , at par. 48). for the purposes ofthis motion that the correct date for triggering discovery of the fraud she alleges is June 12 2008 , the date of the Ridgway Assuming plaintiffs arguendo [* 8] Appraisal , this action is not timely, inasmuch as the statute oflimitations 2010, more than ten months short of the commencement of this action. expired on June 12 Based on the foregoing, the motion by the Kaplan defendants for judgment dismissing all claims against them as time- barred pursuant to CPLR g 3211(a)(5) must be granted. Under these circumstances there is no need for the Court to consider the additional basis for dismissal , namely, failure to state a cause ofactionpursuantto CPLR g 3211(a)(7), and this Court makes no ruling on this latter basis. While the facts ofthis case as alleged plaintiff may warrant relief, none is available where the claims pursued are untimely. The foregoing constitutes the Order of this Court. Dated: December 14 , 2011 Mineola , N. EN1'EftEO ute '2 '\ iO" COUN\'f \J EP.\(' COUNi'( CL S OFF\CE

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