Herod v Das

[*1] Herod v Das 2012 NY Slip Op 51470(U) Decided on July 20, 2012 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 20, 2012
Supreme Court, Kings County

Colleen Herod, Plaintiff,

against

Sanjiv Das, CEO and CITIMORTGAGE, INC., Defendants.



5071/12



Plaintiff Colleen Herod was Pro-se

Attorney for Defendants

William M. Rifkin, Esq.

Belkin Burden Wenig & Goldman, LLP

270 Madison Avenue

New York, NY 10016

(212) 867-4466

Francois A. Rivera, J.

By notice of motion filed on April 4, 2012, under motion sequence number one, defendants Sanjiv Das, CEO and CitiMortgage, Inc. have jointly moved for an order granting summary judgment in their favor and dismissing the instant complaint pursuant to CPLR 3211(a)(1) and (7). Plaintiff Colleen Herod opposes the motion.

BACKGROUND

On March 2, 2012, plaintiff commenced the instant action by filing a summons and complaint with the Kings County Clerk's Office. Plaintiff's complaint contains eighty three allegations of fact and two annexed exhibits. Defendants have not answered the complaint and have instead moved to dismiss the complaint.

MOTION PAPERS

Defendants' motion papers consist of a notice of motion, their attorney's affirmation and eight annexed exhibits. Exhibit 1 is the complaint. Exhibit 2 is a copy of a deed for a property located at 883 Greene Avenue, Brooklyn. Exhibit 3 is a copy of a mortgage loan note between plaintiff and Cambridge Home Capital, LLC, dated May 23, 2002, in the amount of $265,150.00 Exhibit 4 is a copy of a mortgage for the aforementioned property. Exhibit 5 is an assignment of the mortgage from Cambridge to CitiMortgage Inc. Exhibit 6 is purported history ledger of [*2]plaintiff's account with CitiMortgage, Inc. Exhibit 7 is a copy of the county clerk minutes for the instant case. Exhibit 8 is a copy of a note unrelated to the instant action.

In opposition to the motion plaintiff submitted her affidavit and three annexed exhibits labeled Exhibit A through C . Exhibits A and B are documents purporting to show an agreement to discharge a mortgage between the parties. Exhibit C is a mortgage loan note, dated May 23, 2002, for $265,150.00.

Defendants have replied with an affirmation of their counsel.

LAW AND APPLICATION

CPLR 2214(a) provides that a notice of motion shall specify the relief demanded and the grounds therefore. Defendants' notice of motion is ambiguous regarding the procedural vehicle intended for dismissal of the complaint. The motion is labeled as a motion for summary judgment but the itemized portion of the relief requested seeks dismissal pursuant to CPLR 3211(a)(1) and (7). In fact, nowhere in the motion is CPLR 3212, the rule pertaining to motions for summary judgment referenced.

If the defendants did not intend the motion to be treated as a CPLR 3212 motion, then the summary judgment denomination may be disregarded pursuant to CPLR 2001. CPLR 2001 permits a court, "[a]t any stage of an action," to disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced (Avalon Gardens Rehabilitation & Health Care Center, LLC v. Morsello, - AD3d , 2012 NY Slip Op 05485 [2d 2012]).

Assuming, the defendants intended the motion to be treated as one for summary judgment pursuant to CPLR 3212, the following principles apply. CPLR 3212 provides in pertinent part that any party may move for summary judgment in any action, after issue has been joined. "A motion for summary judgment may not be made before issue is joined and the requirement is strictly adhered to" (City of Rochester v. Chiarella, 65 NY2d 92, 101 [1985]). "Joinder of issue requires the service of a complaint by the plaintiff and an answer or counterclaim by the defendant" (Shaibani v. Soraya, 71 AD3d 1121, 1121 [2d 2010]). Inasmuch as the defendants have not answered the complaint, summary judgment would be premature.

Pursuant to CPLR 3211(c), the court may convert a pre-answer CPLR 3211(a)(7) motion for dismissal into one for summary judgment after giving adequate notice to the parties (see Mihlovan v. Grozavu, 72 NY2d 506 [1988]). But "the unilateral actions of a party in seeking summary judgment on a CPLR(a)(7) motion cannot constitute adequate notice' to the other party in compliance with the requirement under CPLR 3211(c)" (Mihlovan, 72 NY2d at 508). Furthermore, the court has examined the plaintiff and the defendants' motion papers and they do not exclusively involve "a purely legal question rather than any issues of fact" (id.). The papers do not demonstrate that the parties were "laying bare [their] proof and deliberately charting a summary judgment course" (Mihlovan, 72 NY2d at 508 citing Four Seasons Hotel v. Vinnik, 127 AD2d 310, 320 [1d 1987]). Therefore, treating the motion as one for summary judgment is not appropriate.

The determination whether to treat the motion as one for summary judgment is not without consequence. A dismissal of a complaint pursuant to a summary judgment motion bars the later commencement of an action pertaining to the same transactions or occurrences. However, a dismissal pursuant to CPLR 3211(a)(7) based on a pleading deficiency has preclusive effect only as to a new complaint for the same cause of action which fails to correct the defect or [*3]supply the omission determined to exist in the earlier complaint (see 175 E. 74th Corp. v. Hartford Acc. & Indem. Co., 51 NY2d 585, 589 fn1 [1980]).

A motion pursuant to CPLR 3211(a)(1) may be granted "only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Jackson v. YAM Holding Corp., - AD3d , 2012 NY Slip Op 05499 [2d 2012], citing Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]). In analyzing defendants' motion to dismiss pursuant to CPLR 3211(a)(1) and (7), the court finds it is more efficient to determine whether the complaint states a cognizable cause of action before considering whether the defendants' documentary evidence supports dismissal of the complaint (see e.g. Fils-Aime v. Ryder TRS, Inc., 11 Misc 3d 679, 682 [2006], affd. 40 AD3d 914 [2d 2007]). Therefore, the court will first determine the defendants' motion for dismissal pursuant to 3211(a)(7).CPLR 3013 provides that "statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." Indeed, "conclusory averments of wrongdoing are insufficient to sustain a complaint unless supported by allegations of ultimate facts" (Vanscoy v. Namic USA Corp., 234 AD2d 680, 681-682 [3d 1996], quoting Muka v. Green County, 101 AD2d 965, 965 [3d 1984]).

Moreover, the court must accept the facts alleged in the complaint to be true and determine only whether the facts alleged fit within any cognizable legal theory (see Stucklen v. Kabro Assocs., 18 AD3d 461, 462 [2d 2005]). However, "bare legal conclusions are not presumed to be true, nor are they accorded every favorable inference" (Breytman v. Olinville Realty, LLC, 54 AD3d 703, 704 [2d 2008]). Additionally, "in assessing a motion under CPLR 3211(a)(7), a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Simmons v. Edelstein, 32 AD3d 464, 465 [2d 2006]). In sum, "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]).

The first half of plaintiff's complaint consists of sixteen numbered paragraphs organized under four headings: (1) Restraint of Title; (2) Restraint of Title is Unlawful; (3) Exhaustion of Remedy; and (4) Conclusion. Of the sixteen paragraphs, only paragraphs one, nine and ten contain allegations of fact.

In the first paragraph of the complaint, plaintiff alleges (1) that Sanjiv Das is the CEO of CitiMortgage, and (2) that CitiMortgage Inc., is a privately-owned, New York Corporation.

In the ninth paragraph of the complaint, plaintiff makes three allegations: (1) "[she] has exhausted her administrative remedies and completed due process in this matter (see Exhibit A)," (2) "[she] has an agreement with the Respondent to cease all litigation (see Exhibit B)," and (3) "Respondent has agreed to stop all tortuous activity against Petitioner, and Respondent is in contempt for his own agreement and in contempt of the judgment in estoppel (Certificate of non-response [referring to Exhibit B])." Paragraph ten states "Respondent acts as a continuous tort feasor in contempt of his own agreement." The paragraphs that contain allegations of fact fail to state a cognizable claim.

The Court likewise finds that the exhibits attached to the complaint do not set forth a [*4]claim. Exhibit A includes what is described as a bonded promissory note and an accompanying explanatory letter. Although the plaintiff contends that those documents evidence an agreement between the plaintiff; the Secretary of the Treasury, Timothy Geithner and CitiMortgage regarding the discharge of a mortgage, it is signed by "Gerard Battle, Real Party in Interest, Authorized Agent for Colleen Herod." Neither Mr. Geithner, nor a representative for CitiMortgage signed the documents. Because plaintiff's Exhibit A is signed only by plaintiff's agent it therefore does not evince any agreement between the parties in this case (see e.g. Hayes v. Biedermann, Reif, Hoenig & Ruff, P.C., 94 AD3d 680 [1d 2012]). Plaintiff's allegation that she exhausted administrative remedies and completed due process is unexplained and therefore rendered meaningless.

Exhibit B includes a document denominated "Notice of Non-Response." The document reads "[b]e it known to all interested parties that there has not been any timely response to BONDED PROMISSORY NOTE for payoff of mortgage " The document is signed by plaintiff and a notary public, but not by Mr. Geithner, or a representative for CitiMortgage. As a result, it does not support plaintiff's claim that defendants have agreed to cease all litigation (id.). Additionally, the court is unaware of any litigation commenced by the defendants against the plaintiff.

The second half of plaintiff's complaint, titled "Questions [Regarding] Respondent's Restraint of the Petitioner's Liberty," consists of 67 numbered questions organized under four headings: (1) Parties; (2) Venue; (3) Jurisdiction; and (4) Right of Action/Cause of Action. Generally, questions cannot fairly be understood to be statements, and plaintiff's questions indeed do not state any allegations of facts. Therefore, there are no cognizable claims arising therefrom.

Plaintiff also submitted an affidavit. The affidavit may be considered to remedy pleading defects in the complaint (see Simmons, 32 AD3d at 465). The affidavit contains seven numbered paragraphs, of which only the seventh paragraph pleads a comprehensible allegation of fact. In light of plaintiff's pro se status, the court will disregard, pursuant to CPLR 2001, paragraph one of plaintiff's affidavit in which the document is referred to as an "affirmation," and instead treat it as an affidavit, so that the court may properly evaluate the submission. Paragraph seven reads "Due to the fact that an offer was presented, the Respondents' accepted, an agreement is established and the mortgage is discharged in full as a matter of law and commerce."

It appears that plaintiff is referencing the documents annexed as Exhibit A and B to the complaint. However, those documents do not support plaintiff's allegations in her affidavit. In sum, plaintiff's complaint and affidavit do not state a cause of action.

The court must liberally construe factual allegations and will not dismiss a complaint simply because of poor draftsmanship, but the court cannot strain to give meaning to a pleading which almost completely fails to state any coherent or comprehensible factual allegations (see CPLR 3013, Heffez v. L & G Gen. Constr., Inc., 56 AD3d 526 [2d 2008]). Thus, inasmuch as plaintiff's complaint does not state any cognizable claim in law or in equity, it must be dismissed pursuant to CPLR 3211(a)(7) (see Guggenheimer, 43 NY2d at 275).

CONCLUSION

Accordingly, defendants' motion to dismiss plaintiff's complaint, pursuant to CPLR 3211(a)(7), is granted and the court does not reach the issue of dismissal pursuant to CPLR 3211(a)(1). [*5]

The foregoing constitutes the decision and order of the court.

ENTER,

J.S.C.

ENTER FORTHWITH

J.S.C.