SKC Corp. v Regent Abstract Servs., Ltd.

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SKC Corp. v Regent Abstract Servs., Ltd. 2012 NY Slip Op 32296(U) August 21, 2012 Supreme Court, Suffolk County Docket Number: 38524-2010 Judge: Emily Pines 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 lNDEX NlIMHER: 38524-2010 SUPREME COljRT - STATE OF NEW YORK COMMERClAL DIVISION. PART 46, SUFFOLK COUNTY 05-08-2012 05-29-2012 002 MG 003 MD Original Motioll Dale' Motion Submil Date: Motion Sequcncc No,' Present: HON. EMILY PINES J. S. C. [I [X FINAL 1 NON FINAL x AttorneV' for Plaintiff Alexander Novak, Esq, Novak, Juhase & Stem 483 Chestnut Street Cedarhurst, New York 11516 SKCCORP., Plaintiff, -against- Attorney for Defendant DelBello Donnellan Weingarten Wi~e & Wiederkehr, LLP Daniel G. Walsh, Esq. One North Lexington Avenue, 11t11 FI. White Plains, New York 10601 REGENT ABSTRACT SERVICES, LTD., and UNITED GENERAL TITLE INSURANCE COMPANY, Defendants. x ORDERED that the branch of the motion for leave to serve a Second Amended ORDERED that plaintiffs deemed served upon defendants l (Mot. Seq. # 002) by plaintiffpursuantto Verified Complaint Second Amended is granted; and it is further Verified Complaint dated January 5, 2012, is as of the date of this order; and it is further ORDERED that defendant United General Title Insurance Company's an answer to the Second Amended 1 CPLR 3025 Verified Complaint is extended ("UGT") time to serve to 10 days after service upon them The Court would like to acknowledge the valuable aid of Stephen McLinden, Legal Intern. [* 2] of this Order INith nulice orcntry: and It is further ORDERED that the branch of the motion (1'v101. cq # 0(2) by plaintillplirsuant S seeking a dcbult judgment against defendant ORDERED that an assessment Regent Abstract Services, of damages or the main <tellon, either by settlement determination ORDERED, that the eross-motion and 3212 for summary judgment the completion against Regent [.td is granted: and it is I'urther is hereby stayed until the flnal or at the time oftnal; (Mot. Seq. II 0(3) by defendant dismissing the plaintiff's complaint to CPLR 3215 and illS further pursuant to CPLR 3211 (a)(7) is denied with leave to renew upon or discovery. Factm,l ~,"dProcedural Background In thiS action for, inter alia, breach of eon tract, plaintiffSKC recover $330,995.56 li'om defendants ritle Insurance Company Second Amended ("UGr') Regent Abstract Services, UGT cross-moves, Amended Ltd. ("Regent") seeks to and United General In motion sequence #- 002, Plaintiff moves for leave to serve a Veril:lcd Complaint Defendant Corp. ("PlaintilT') against defendant Regent. Complaint. The following pursuant and for a dcfallltjudgmcnt undIsputed Material Facts submitted to CPLR 3211 and 3212, for an order dismissing facts are gleaned from the parties' pursuant to Commercial party Toner Development Corp. $230,000 Brooklyn. ;\ title rcpor1 issued by Regent prior to the closing liTe orany liens, Judgments. mortgages with environmental held by lwo banks. Plainlin~s mortgage of 011 'l'he mortgage liens, a claim for conveyance To date, over $900.000 the loan showed the property to be was not recorded Page20fS until 2010. had been previously by a previous owner, and three or mortgages on the property, which \-vas recently appraised non- on a piece of' real estale in Toner dcf~lltltcd on the note in 2008. Plaintirf learned that the property encumbered Statements Division Rule 19-01. In 2007, PlaintifTloaned and received a mortgage or other mortgages. respective the First and judgments with il precede value or$300,O()O. Alter [* 3] PlaintilTcommcnced this action in 2010. The Firsl Amended Complaint dated January 28. 20 I]. asserts Iou)"causcs of action against both defendants. It is alleged. among other things. that Regent issued the title report as an agent or UGT. The first cause or <lction allcges breach of contract f(x f~lilingto record the mortgage in 2007. The second cause or action alleges breach of contract fix fnihng to inrorm Plaintirr that there were other mortgages on the property. The third cause or action alleges that the dclcndants were negligent in issuing an inaccurate title report. The fourth calise of action seeks attorneys' Ices that Plamti If expects to incur in collecting on the note. In the proposed Second Amended Verified Complaint, Plaintirf seeks to add several factual allegations. including that UGT issued a Loan Policy of Title Insurance to Plainti rr covering the mortgage given by TOller to Plaintiff Additionally, Plaintiirs proposed Second Amended Verified Complall1t discontinues the breach of contract claims (first and Second Causes of Action) a<; asserted against UGT based upon the alleged failure to record the mortgage and inform Plallltiffof the prior encumbrances. the negligence claim (Third e<lUSC Action) and claim for attorney's fees of (Fourth Cause of Action) as asserted against UGT. Thus, the proposed Second Amended Verified Complaint contains the following causes of action: breach of contract against Regent only (First). negligence against Regent only (Second). breach of contract against UGT for denying Plaintirrs claim made uncler the insurance policy issued by UGT (Third). and breach of fiduciary duty against Regent only (Fourth). Thus. the only cause of action in the proposed Second Amended Veri tied COlllplninl asserted against UGT' is the Third Cause of Action lor breach oCthe insurance policy. The proposed Second Amended Verified Complaint abandons all other causes of action against UGT It is noted that the Court has not heen provided with a complete copy orthe policy. Plaintiff has provided whut appears to he an incomplete portion or a contract for a title policy, and counsel asserts that Regent never provided PlaintifT or their attorneys with anything more. UGT has nol provided a copy orthe policy. but only a sample form fi"()lll he American Land Title Association. t lJGT opposes PlaintiJrs motion for leave to serve the Second Amended Verified Complaint and cross-moves to dismiss the First Amended Complaint. In the event that the Comt is inclined grant Plaintiff leave to amend, UGr s counsel has consented. in writing. to the Court treatillg its Page 3 of 5 [0 [* 4] motion as directed against the Second Amended Verified Complmnt. Discussion CPLR 3025(b) provides that "[aJ party may amend his pleading, or suppkment 1l by settlllg forth addltional or subsequent transactions or OCCUITences, any time hy leave of court or by al stipulation of all parties. Leave shall be freely given upon such terms as may bejust including the granting of costs ancl continuances." "In the absence of prejudice or surprise resulting b'om the delay in seeking !cave, [applications j"i)rleave to amend a pleading pursuant to CPLR 3025(b)j are to be fl-cdy grantee! unless the proposed amendment is palpably insuf1icient or patently devoid of ment" (LI/cido v. Mancuso, 49 i\D3d 220, 221 pd Dept. 2008]). "[A] plaintilTseeking leave to amend the complaint is not required to establish the merit of the proposed amendment in the first instance" (It!. at 227). ;'No evidentiary showing is required under CPLR 3025(b)" (ld. at 229). Additionally, whether to grant or deny \cave to amend is committed to the court's discretion (Edenwald Con/roctin?, Co" Inc. v. C'ify ofNc,v York. 60 NY2d 957, 959 [1983]). Here, UC':;T has failed to demonstrate that it would be prejudiced or surprised by the allegations and causes of action contained in the proposed Second Amended Ve1'1 lied Complaint. Addition'll!y, UGT has failed to demonstrate that the proposed amendment is palpably insuffleient or devoid of merit. With regard to UGT's cross-molion. Jt \vould be premature for the Court to dismiss Plaintiff's claim against UGT ItJr breach of the insurance policy without an opportunity to review' a complete copy of the policy in question. -'It is a \vell-settled principle that the title insurer's ohligation to indemnify is defined by the policy itselt"and limited to the loss in valuc of the title as a result of title defects against which the policy 111surcs"(Ci/ibonk. i\D2d 212, 221 )"1 Dept 1995]. st N/!. v Chicago Tit. Ins. Co., 214 rhe allegations in the Third Cause of Action ill the Second Amended Verified Compla111tsulliciently state a cause of action for breach of contract against UGL Additionally, UGT has failed to make ,1 prima facie sho\vmg of entitlement to judgment as a matter 01 law as it failed to submit any evidentiary proof that the insurance policy docs not cover PlaintifTs claim. Page4of5 [* 5] Title insurance is an mdemnity contruet protecting agamst losses ll1eurred because of defects in title. Grill/hager \"/SCSO/l, 75 AD2d 329, 331 1\ st Dcpt 19801 distinguish thell" dispute from the bcts in polley, this Court is unable to determine of the policy or an understanding at trial (r/"lIl1hel"ge/", Plaintiff and defendant but unlike Gmnherger. without a copy (1fthe iethe policy covers the Pla1l1tiffs claim A complete copy of such a policy may come to light with the benefit of discovery or Thus, UGT is granted leave to renew its motion for summary judgment completion attempt to follo\ving the of discovery. l:mally, as it appears that Regent \vas properly served with the Summons has failed to appear. Plaintifes motion for a defendt judgment and Compliant against Regent is granted, as set forth above. This constitutes the DECISION and ORDER oethe court. Dated: August 21, 2012 Riverhead, Nc\y York ~ .N' ..' '" Kiikr'-'r t~,.'c.r&<l El\IlLY PINES '. .I. S. C. r ] [x FINAL I NON FINAL Page 5 of 5 and

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