LSF6 Mercury REO Inv., LLC v Midrome Inc.

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LSF6 Mercury REO Inv., LLC v Midrome Inc. 2012 NY Slip Op 32245(U) August 13, 2012 Supreme Court, New York County Docket Number: 101966/2012 Judge: Lucy Billings 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. lNNED ON 813012012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: LUCY BILLINGS PART It-(- 4L Justice . Index Number : 101554/2012 LSF6 MERCURY REO INVESTMENTS INDEX NO. vs. ADLER ASSOCIATES SEQUENCE NUMBER : 001 MOTION DATE MOTION 3EQ. NO. DISMISS ACTION The following pepsrs, numbered I to Notlee of Motlon/Order to Show Cause 1.I. ,were read on thls motlon toffpf -Affldavlts - Exhlblts &W :5 s * b=Qw & INo(s). 1-2 AnrwerJng Affldavlta - Exhlblb )No(r). 3 Roplylng Amdavits (No(r). 4 Upon the foregoing papem, It io ordered- & .tt.M "e I Dated: fl I3 1 1 % ..................................................................... UCASE DISPOSED CI NON-~INAL DISPOSITION 2. CHECK AS APPROPRIATE: ........................... MOTION IS: BQRANTED [7 DENIED ORANTED IN PART 0OTHER 3. CHECK IF APPROPRIATE: ................................................ 0SEITLE ORDER 0SUBMIT ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE I. CHECK ONE: [* 2] LSF6 MERCURY REO INVESTMENTSl LLC, Index No. 101966/2012 Plaintiff - against - MIDROME INC. and LONNY J. ROTHMAN, Defendants -X - - _ - _ _ _ _ _ _ _ _ _ _ - _ _ _ _ _ _ l _ _ _ _ _ _ _ _ _ _ _ _ l _ _ LSF6 MERCURY REO INVESTMENTS, LLC, Index No. 101554/2012 Plaintiff - againBt - ADLER ASSOCIATES and JOHN LINDER, FILED Defendants NEW YORK DECISION AND ORPER COUNW CLERK'S OFFICE LUCY BILLINGSl J.S.C.: In each of these actions, consolidated for t h e deciBion of defendants' motion to dismiss in each, plaintiff discontinues itB third claim f o r negligent misrepresentation, fourth claim f o r breach of a contract, fifth claim f o r breach of an express warranty, and sixth claim f o r breach of an implied warranty pursuant to an accompanying stipulation. C.P.L.R. 5 3217(a)(2) and (b). The court grants defendants' motions to dismiss plaintiff's remaining claims aB follows. Even if the statute of limitations applicable to plaintiff's LSF6Hg.141 1 [* 3] firat claim for negligence runs three years from when defendants' allegedly negligent appraisal injured plaintiff's predecessor, C.P.L.R. 5 214(4) and (6), ita i n j u r y , the reduced value of its security interests in the property defendants overvalued, occurred when plaintiff's predeceesor obtained the security interests in 2005. The injury did not occur when plaintiff, its predecessor's assignee, decided to reflect that reduction in plaintiff's financial records in 2009. Since plaintiff commenced these actions in February 2012, the court grants defendantat motions to dismiss plaintiff's first claim for negligence as barred by the statute of limitations. C.P.L.R. (6)I §§ 214(4) and 3211(a) ( 5 ) . Even if the statute of limitations applicable to plaintiff's second claim f o r f r a u d runs two yearB from when plaintiff discovered or with reasonable diligence could have discovered defendants' alleged fraud, C.P.L.R. 5 213(8), plaintiff could have discovered the fraud with reasonable diligence at leaat by 2009 when plaintiff in its records reduced the value of the p r o p e r t y defendants appraised. p r o p e r t y value reflects i t B Plaintiff's reduction of the realization that defendants had inflated the value. Whether the statute of limitations runs two years from 2009 or six years from defendants' fraudulent appraisal reports in 2005, the court grants defendants' motions to dismias plaintiff's second claim for fraud as barred by the statute of limitations. C.P.L.R. §§ 213(8) I 3211(a) ( 5 ) . Plaintiff's seventh claim for negligence per LSF6Hg.141 2 se is merely [* 4] another theory of negligence and, because plaintiff alleges defendants' violation o n l y of a regulation, 19 N.Y.C.R.R. 5 1106.1, not of a statute, such a violation is only evidence of negligence, not negligence par Be. Bauer v. Female Academv of Sacred &a rt, 97 N . Y . 2 d 445, 452-53 (2002); Elliott v. City of New York, 95 N.Y.2d 730, 734 (2001); c a t a r i w v. State, 467, 468 (1st Dep't 2 0 0 8 ) ; Feller v. L o u s Provenzano, ' 5 5 A.D.3d Inc ' 1 303 In any event, this claim of A.D.2d 20, 2 6 (1st D e p ' t 2 0 0 3 ) . negligence based on a regulatory violation fails for the same reason as plaintiff's first claim for negligence. The statute of limitations applicable to plaintiff's eighth claim for violation of New York General Business Law § 349 also runs three years from when defendants' allegedly deceptive appraisal reports injured plaintiff's predecessor and assignor, C.P.L.R. 5 214(2), and therefore fails f o r the same reason a8 plaintiff's negligence claim. Finally, absent any independent substantive claim, plaintiff may not recover punitive damages, as sought by plaintiff's ninth claim. Rocanova v. Equitable Life Asaur. Socv., 83 N.Y.2d 603, 616-17 (1994); Kenny v. RBC Rova1 Dep't 2005); P r o t e C o n t r . Co. v. Bmk, 22 A.D.3d 385, 386 (1st Board of E d u c . of C i W Q f N.Y., 276 A.D.2d 3 0 9 , 3 1 0 (1st Dep't 2000); Fandi A.J. v. Lonq I;s. Surqi-Ctr., 46 A.D.3d 74, 8 0 ( 2 d Dep't 2 0 0 7 ) . Equit 941e Life Assvr. S O W . , Rocanova v. 83 N.Y.2d at 613, 615. In sum, the c o u r t grants defendants' motions to dismiss each claim t h a t plaintiff has not discontinued and therefore dismisses t h e entire LSF6Hg.141 3 [* 5] complaint in each a c t i o n . C.P.L.R. § 3211(a)(5). This decision constitutes the court's order and judgment of dismissal. DATED: August 13, 2012 L7 m1-s LUCY BILLINGS, J.S . C. NEW YORK COUNTY CLERK'S OFFICE LSF6Hg.141 4 [* 6] 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK c/ v. vnRK COUNTY CLERKS OFFICE NFW Date: rl/J/lz So Ordered. Attorney for Defendant J. S. C. LUCY BILLINGS J.S.C.

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