Mincone & Mincone, P.C. v Irwin Union Bank & Trust Co.
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Mincone & Mincone, P.C. v Irwin Union Bank & Trust Co. 2012 NY Slip Op 30962(U) April 3, 2012 Supreme Court, Nassau County Docket Number: 16936-10 Judge: Vito M. DeStefano 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 - STATE OF NEW YORK Present: HON. VITO M. DESTEFANO, Justice TRIAL/IAS , PART 19 NASSAU COUNTY MINCONE & MINCONE, P. c. - TITLE INSURANCE AGENCY, Decision and Order Plaintiff, -against- MOTION SEQUENCE:01, 02 INDEX NO. 16936- IRWIN UNION BANK AND TRUST COMPANY and FIRST FINANCIAL BANK, Defendants. The following papers and the attachments and exhibits thereto have been read on this motion and cross motion: Notice of Motion Notice of Cross Motion Defendants ' Memorandum of Law in Opposition to Plaintiff s Motion for Summar Judgment and in Support of Defendants ' Cross Motion for Summar Judgment Plaintiffs Affirmation in Reply and in Opposition to Defendants ' Cross Motion Defendants ' Memorandum of Law in Reply to Plaintiffs Opposition to to Defendants ' Cross Motion for Summar Judgment The Plaintiff, Mincone & Mincone, P. C. (" Mincone ) moves for an order inter alia pursuant to CPLR 3212 granting it summar judgment against the Defendants , Irwn Union Ban and Trust Company (" Irwin Union ) and First Financial Ban (" First Financial" ) in the amount of $25, 545.24 , plus interest. The Defendants oppose Mincone s motion and cross-move for an order pursuant to CPLR 3212 granting them summar judgment dismissing the complaint. For the reasons that follow , the motion is denied and the cross motion is granted. [* 2] .. Factual and Procedural Background By referee s deed dated April 8 2008 , Irwin Union acquired title to the propert located at 33 Stirling Avenue , Freeport , New York ("propert" ) (Ex. "4" to Cross- Motion). On September 8, 2009 , a contract for the purchase and sale of the propert was entered into between Nations First (Green Tree Servicing, LLC) and FC NY , LLC (" buyer ) (Ex. " 6" to CrossMotion). Green Tree Servicing was the attorney in fact for Irwin Union (Ex. " c" to Plaintiffs Opposition to Defendants ' Cross- Motion). Ten days later , on September 18 2009 , Irwin Union closed and was placed in receivership and the Federal Deposit Insurance Company (" FDIC") was named as the receiver for Irwin Union (Ex. " E" to Motion). On the same day, First Financial entered into an agreement with the FDIC whereby First Financial assumed certain assets , debts and obligations ofIrwin Union (Ex. " 1" to Cross- Motion). The precise nature of the relationship between First Financial , Irwin Union , Green Tree Servicing and the subject propert is unclear from the record and has not been fully explained by the paries. On November 24 2009 , Irwin Union requested that Mincone , the title agent which procured a title insurance policy on behalf ofthe buyer , provide a final title bil " indicating the amounts required to be paid by Irwin Union in order for (Mine one J to clear the title exceptions 9). A title search had related to the real estate taxes raised in the title report (Ex. " A" at 8). revealed various encumbrances on the propert, including taxes owed thereon (Ex. " A" at The " final closing statement" indicated that the seller (Irwin Union) was responsible for charges totaling $54 975. 97 and the buyer was responsible for charges totaling $3 904 , with a net amount owed by Irwin Union of$49, 715, consisting of the following charges: 2008/09 school tax ($26 018. 19); 2009 general tax ($1 551.28); 2009/10 vilage tax ($6 980.45); 2009/101 Y2 school ($4 303. 80); 2008/09 vilage tax lien ($5 318. 09); 2007/08 vilage tax lien ($5 544. 16); and water ($5 000) (Ex. " F" to Motion). Following the " final closing statement" , there were several e-mail exchanges with respect Irwin Union s objection to the water charge. None of the e-mails made reference to any of the tax charges mentioned in the " final closing statement" other than one email wherein Gayle Colavito (on behalf of Irwin Union) referred to the " huge amounts on all fronts " (Ex. " H" to Motion). A copy of the HUD- , dated November 25 2009 , was provided to Mincone prior to 6; Ex. " ). The HUD- l charged the closing (Kapnick Affidavit in Support of Cross- Motion at seller (Irwin Union) with 2009 general taxes due in the amount of $1 , 551. 28 and 2008/2009 1 The closing took place school taxes in the amount of$26 018. 19 (Ex. " 7" to Cross- Motion). November 25 2009; Irwin Union was charged with the 2009 general taxes and the 2008/09 1 Mincone asserts in the complaint that Irwin Union only paid $26 018. 19, which represents the amount owed for the 2008/09 school tax , however , the HUD- l indicates that Irwin Union also paid the 2009 general tax in the amount of $1 , 551.28. [* 3] school taxes. The remaining tax charges referenced in the " final closing statement" were not indicated on the HUD- l (Ex. " 7" to Cross- Motion). Mincone did not discover the shortfall for unpaid taxes (in an amount exceeding $20, 000) until six days after the closing, at which time Mincone asked the buyer s attorney to try and recover the additional ta money from Irwin Union (Iorio Affidavit in Support of Motion at ~ 14). By letter dated June 10 2010 , Mincone again requested that Irwin Union pay the remaining amount due for the taxes. Specifically, Mincone wrote: Based upon your representation that the taxes would be paid at closing, the title exceptions for these items were omitted. However , at the closing, our client was only paid the sum of $26 018. 19 . . . representing the above referenced 2008/09 School Tax. The other taxes shown on the title invoice , totaling $23 697. 78, were not paid and remain due and owing (Ex. "J" to Motion). Mincone then commenced an action against Irwin Union and First Financial asserting causes of action for breach of contract , promissory estoppel , and unjust enrichment (Ex. "A" to Motion). 3 Issue was joined after which the paries moved and cross-moved for summar judgment. The Court' s Determination The Defendants argue that Mincone lacks standing to pursue a breach of contract cause of 2 According to the complaint the sum of$49 715. 97 was required to be paid by the seller Irwin Union in order to clear the title objections , which sums Irwin Union agreed to pay in consideration for 10). On the date of the clearance of the RE Tax title exceptions raised in the title report" (Ex. " A" at the closing, Mincone omitted all of the real estate taxes exceptions and Irwin Union paid the sum of $26 018. 19 (which represented a portion of the taxes owed) and conveyed the propert to the buyer (Ex. A" at 12). 3 The breach of contract claim asserts that Irwin Union " failed to pay (Mincone) the sums required to satisfy the RE Taxes , and thus breached its agreement with (Mincone) pursuant to which it agreed to pay (Mincone) the sums needed to satisfy the title exceptions related to the RE Taxes in 14). In the second consideration for the clearance of those title exceptions " (Ex. " A" to Motion at cause of action based on promissory estoppel , Mincone asserts that Irwin Union " made a clear and unambiguous promise to (Mincone) to pay the amounts required to satisfy the RE Tax exceptions raised in the title report as indicated on the Title Bil" and that Mincone "reasonably relied on this unambiguous 20promise and cleared the RE Taxes title exceptions raised in the title report" (Ex. " A" to Motion at 21). Mincone alleges in the third cause of action that Irwin Union has been unjustly enriched given that Irwin Union did not satisfy the real estate taxes but was nevertheless paid the full purchase price for the 26). propert (Ex. " A" at [* 4] action in that it was neither a pary to the purchase contract nor a third-pary beneficiar thereof. Mincone s breach of contract cause of action appears to be based on a theory of implied contract although some allegations in Mincone s submissions suggest the existence of an express agreement. Irrespective of how Mincone ' s breach of contract cause of action is categorized however , Mincone has failed to establish the existence of any duty, either express or implied , as between itself and the Defendants. In this regard , the sole contractul duties clearly ariculated in the paries ' submissions relating to the subject transaction are those contained in the contract between Irwin Union and the buyer. The cour views the attempt by Mincone to establish a faux contractual relationship between itself and the Defendants as an effort to avoid application of the merger doctrine-which would extinguish contractual obligations arising out of the purchase contract , and which would apply had Mincone become subrogated to the rights of the buyer by paying the outstanding tax charges. In any event , even assuming that Mincone could establish the existence of a duty between the Defendants and itself, Mincone s failure to allege or prove that it suffered any injur (i. , by paying the outstading taxes), requires dismissal of the breach (see generally Palmetto Partners, L.P. v AJW Qualifed Partners of contract cause of action 1:5 (4 ed. ) (the legal effect of an LLC , 83 AD3d 804 (2d Dept 2011); Willston on Contracts express contract and an implied contract are identical)). Mincone s promissory estoppel and unjust enrichment causes of action are likewise without merit. Regarding the former claim , the following is noted: The elements of a claim for promissory estoppel are: (1) a promise that is sufficiently clear and unambiguous; (2) reasonable reliance on the promise by a par; and (3) injur caused (Matlin Patterson AT A Holdings LLC v Federal Express Corp. 87 AD3d 836 (1 by the reliance Dept 2011)). Here , as a matter oflaw , Mincone canot show that Irwin Union or First Financial made a " clear and unambiguous promise " to it to payor escrow taxes or that Mincone suffered injury by paying such taxes itself. Regarding Mincone s unjust enrichment claim , it is relevant to note that in order to sustain a cause of action for unjust enrichment , an aggrieved par must show that the other par was enriched , at the aggrieved part' s expense , and that it is against equity and good conscience (Zamor v L&L Associates to permit the enriched par to retain what is sought to be recovered Holding Corp. 85 AD3d 1154 (2d Dep 2011 J). As stated , it is undisputed that Mincone did not pay the outstanding real estate taxes which are the subject of this action. Without a showing of payment , Mincone canot demonstrate that Irwin Union or First Financial were enriched' at Mincone s expense ' and , thus , canot prevail on its ' claim for unjust enrichment. Based on the foregoing, it is hereby ordered that the Defendants ' cross motion is granted 4 Contrary to Mincone s assertion , the " final closing statement" submitted to Irwin Union the day prior to closing did not " memorialize the agreement between the parties " that monies were to be placed in escrow by Irwin Union in consideration for Mincone clearing title to the propert (Affirmation in Support at ~ 19). [* 5] and the complaint is dismissed. It is furer ordered that Mincone ' s motion is denied. This constitutes the decision and order of the court. Dated: April 3 , 2012 LIt Hon. Vito M. DeStefano, J. ENTERED APR 0 6 2012 NASSAU COUNTY COUNTY CLER'K' S OFFiCE 5 The Defendants ' other arguments in favor of dismissal are either without merit or were not established to the court' s satisfaction. In this regard, Irwin Union argues that Mincone s claims should be dismissed on the basis that the court lacks subject matter jurisdiction to adjudicate the claims between Mincone and Irwin Union. Specifically, the Defendants argue that prior to any action against a bank in receivership, a plaintiff is required to exhaust the administrative review process set forth in 12 USC 1821 (d), which Mincone failed to do (Memorandum of Law in Support of Cross- Motion at pps 5- 7). However, because the service of performing title work was conducted after Irwin Union went into receivership, Mincone s claim does not require administrative review by the FDIC. In addition , the Defendants seek dismissal of the complaint insofar as asserted against First Financial on the basis that the subject propert was not among the assets purchased by First Financial (Stollngs Affidavit in Support of Cross Motion at ~~ 7- 9; Defendants ' Memorandum of Law in Support of Cross Motion at p 7). However , as indicated , the relationship between First Financial , the subject propert, and the parties to this action is not suffciently clear from the record to grant dismissal on this basis.
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