Sabbagh v Pizzuro

[*1] Sabbagh v Pizzuro 2004 NY Slip Op 51159(U) Decided on July 13, 2004 Supreme Court, Nassau County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2004
Supreme Court, Nassau County

TAMMY SABBAGH, Plaintiff,

against

KAREN PIZZURO, ABC CONSTRUCTION CORP. (fictitious name), DEF CONSTRUCTION CORP. (fictitious name), TOWN OF HEMPSTEAD, JOHN DOE (fictitious name), CROSS COUNTY ABSTRACT, INC., FIRST AMERICAN TITLE INSURANCE OF NEW YORK, ALLISLAND ESTATES REALTY CORP. and RICHARD SHANE, Defendants.



15196/03



Mintzer, Sarowitz, Zeris, Ledva & Meyers, Esqs.

Attorneys for Plaintiff

39 Broadway, Suite 950

New York, NY 10006

Farrell Fritz, PC

Attorneys for Defendants

Cross County Abstract, Inc. And First American title Insurance of New York

EAB Plaza

Uniondale, NY 11556

Joseph J. Ra, Esq.

Attorney for Defendant

Town of Hempstead

Hempstead Town Hall

Hempstead, NY 11550

Mulhern and Klein, Esqs.

Attorneys for Defendants

All Island Estate Realty Corp. and Richard Shane

3330 Park Avenue

Wantagh, NY 11793

WILLIAM R. LaMARCA, J.

The Court, sua sponte, recalls its order of July 1, 2004 to correct a typographical error and substitutes the following order in its place, nunc pro tunc: [*2]

Defendants, CROSS COUNTY ABSTRACT, INC. (hereinafter referred to as "CROSS COUNTY") and FIRST AMERICAN TITLE INSURANCE OF NEW YORK (hereinafter referred to as "FIRST AMERICAN"), move pursuant to CPLR § 3211(a)(7) for an order dismissing the Complaint for failure to state a cause of action. Thereafter, defendant, TOWN OF HEMPSTEAD (hereinafter referred to as the "TOWN"), moves pursuant to CPLR § 3212 for an order granting summary judgment dismissing the Complaint and all Cross-Claims against it. Subsequently, the TOWN cross-moves for leave to amend its ANSWER to assert the defense of Statute of Limitations. The plaintiff opposes the motion and cross-motions which are determined as follows:

Background

In April 1999, plaintiff, TAMMY SABBAGH, purchased a residence located at 3194 Ilene Lane, Levittown, New York, from the defendant, KAREN PIZZURO. Plaintiff states that in May 2000 she installed an above ground pool in the backyard of said property and that on July 8, 2002, said pool collapsed into a previously undisclosed and hidden in-ground pool on the premises. Plaintiff asserts that the in-ground pool was negligently filled, covered and hidden in violation of the Town housing codes and regulations. Plaintiff has commenced the instant action against the former owner, KAREN PIZZURO, the construction corporation that filled in the pool, DEF CONSTRUCTION CORP. (a fictitious name), the TOWN and its employee, JOHN DOE (a fictitious name), CROSS COUNTY, the abstract company that inspected the Town records and issued a title report, FIRST AMERICAN, the company that insured title and ALL ISLAND ESTATES REALTY CORP. and RICHARD SHANE, the real estate brokers engaged by PIZZURO to sell the property to plaintiff.

With respect to the pending motions, plaintiff alleges in the FOURTH and FIFTH causes of action that the TOWN and its employee were negligent in inspecting the subject premises pertaining to the construction, abandonment and refilling of the in-ground pool and created a "special relationship" with PIZZURO and the construction company and allowed blatant violations of the Town Code in filling the pool. In actions SIXTH and SEVENTH, plaintiff alleges that CROSS COUNTY was negligent in examining the public records of the TOWN and in failing to uncover and mention the in-ground pool and the improper filling of same. It is plaintiff's position that FIRST AMERICAN is liable for the negligence of CROSS COUNTY, its agent.

As to the Motion in Chief

In the motion to dismiss (# 01), CROSS COUNTY and FIRST AMERICAN claim that the liability of a title insurance company and its agent is prescribed by the terms and conditions of the contract of insurance which insures only against title defects and not for sub-surface conditions such as a hidden in-ground pool which is not a title defect. In opposition to the motion, plaintiff states that after the collapse of the pool, she reviewed the records of the TOWN's Building Department and discovered an application for a Building Permit to build an in-ground pool on the subject property as well as a Building Permit, issued in April 1960. Further, the TOWN records revealed that a Request for a Building Inspection was filed in January 1989. Plaintiff states that none of these documents or their existence were revealed in the title report and that she has been injured in her reliance upon the report of CROSS COUNTY as agent for FIRST AMERICAN. It appears that no Certificate of Completion was ever filed with respect to the building of the in-ground pool and when an inspection of the premises was made on January 2, 1990, the Building Permit was marked "VOID" as no pool was found. [*3]

It is well settled that on a motion to dismiss for failure to state a cause of action pursuant to CPLR § 3211 (a)(7), the Court must accept the plaintiff's factual allegations as true and liberally construe the complaint in favor of the plaintiff. EECP of AM, Inc. v. Vasomedical, Inc., 265 AD2d 372, 696 NYS2d 837 (2nd Dept.1999); Smuker v. 12 Lofts Realty Inc., 156 AD2d 161, 548 NYS2d 437( 1st Dept. 1989); Foley v. D'Agostino, 21 AD2d 60, 248 NYS2d 121 (1st Dept. 1964). On said motions, the Court looks to the substance of the motion rather than to the form. Such a motion is solely directed to the inquiry of whether or not the pleading considered as a whole fails to state a cause of action or whether any cause of action can be spelled out from the four corners of the pleadings. Foley v. D'Agostino, supra.

Based upon the foregoing, it is the Court's judgment that no reasonable view of the pleaded facts in the SIXTH cause of action state an action against the defendant, COUNTY ABSTRACT, and no triable issues of fact remain. As acknowledged by the plaintiff, a careful search of the public records of the TOWN revealed a canceled building permit for an in-ground pool. A hidden in-ground pool and the improper filling of same is not the type of thing that would be uncovered in an exhaustive search of the TOWN records and CROSS-COUNTY can not be held liable under any theory of law. However, with respect to the SEVENTH cause of action, FIRST AMERICAN has insured against the "unmarketabillity of the title" and it is the Court's view that given the circumstances herein, there may be a cloud on title because there now exists an illegal in-ground structure for which the building permit has been canceled. A policy of title insurance insures against loss by reason of defective titles and encumbrances, and insures the correctness of searches for all instruments, liens or charges affecting title to such property. The liability of the title insurer is based upon contract law and not negligence. It is governed by the provisions of the title insurance policy. Thus it is no defense to a title insurer to assert that the matter which caused a loss to its insured could not have been uncovered by a comprehensive search of the land records. The title insurer will be liable for even hidden defects and all matters affecting title within the policy coverage and not excluded or specifically excepted from coverage. Citibank N.A. v. Consolidated Land Title Insurance Co., 2228 AD2d 635, 645 NYS2d 826 (2nd Dept. 1996). Accordingly, the movant's motion is granted with respect to CROSS COUNTY and denied with respect to FIRST AMERICAN. In sum, plaintiff's SIXTH cause of action is dismissed.

As to the Cross-Motions

In the FOURTH and FIFTH causes of action, plaintiff alleges that the TOWN and its employee were negligent in inspecting the subject property pertaining to the construction, abandonment and refilling of the in-ground pool. In the motion for summary judgment (#02), the TOWN states that such allegations are merely conclusory and not supported by evidentiary facts sufficient to raise a triable issue of fact, that the Statue of Limitations has expired prior to service of the Summons and Complaint, that plaintiff has failed to establish some "special relationship" creating a duty to exercise care for the benefit of the plaintiff, and that liability may not be imposed on the municipality for failure to enforce a statute or regulation absent a "special relationship". When plaintiff pointed out that the TOWN had waived the defense of the Statute of Limitations by failing to move by pre-answer motion under CPLR § 3211 (a)(5) or to plead the defense as in affirmative defense under CPLR § 30018(b), the TOWN moved (#03) to amend its Answer to include said defense.

In viewing motions for summary judgment, the focus of the Court's concern is issue finding, [*4]not issue determination, and affidavits should be scrutinized carefully, in a light most favorable to the party opposing the motion. Judice v. D'Angelo, 272 AD2d 583, 709 NYS2d 427 (2nd Dept 2000); Robinson v. Strong Memorial Hospital, 98 AD2d 976, 470 NYS2d 239 (4th Dept. 1983). In examining the pleadings sought to be dismissed and the affidavits and documentary evidence submitted herewith, the Court finds that the plaintiff has failed to establish a breach of a duty owed to the plaintiff by the TOWN as no "special relationship" has been pleaded and there is no evidence of a triable issue of fact.

To obtain liability against a public entity, the duty breached must be more than one which is owed to the public generally. Without a duty running directly to the injured person, there can be no liability. See, Lauer v. City of New York, 95 NY2d 95, 711 NYS2d 112, 733 NE2d 184 (C.A. 2000). Under the circumstances presented, plaintiff must establish a "special relationship" in order to pursue a claim against the TOWN. The elements of this "special relationship" have been defined as including, the following:

1. an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; 2. knowledge on the part of the municipality's agents that inaction could lead to harm; 3. some form of direct contact between the municipality's agents and the injured party; 4. that party's justifiable reliance on the municipality's affirmative undertaking... Cuffy v. City of New York, 69 NY2d 255, 513 NYS2d 372, 505 NE2d 937 (C.A. 1987; see also, Kircher v. City of Jamestown, 74 NY2d 251, 544 NYS2d 995, 543 NE2d 443 (C.A. 1989). Such a relationship cannot be established without proof that the injured party had direct contact with the municipality's agents and justifiably relied to his or her detriment on the municipality's assurances that it would act on the party's behalf. Kircher v. City of Jamestown, supra, Cuffy v. City of New York, supra. The allegations pleaded in the case at bar are insufficient to obtain liability over the TOWN and its employee under any reading of the Complaint and no triable issue of fact exists. Accordingly, the FOURTH and FIFTH causes of action of the complaint are dismissed. Based on the Court's determination, it does not reach the issue of the Statute of Limitations.

All further requested relief not specifically granted is denied.

This constitutes the decision and order of the Court.

Dated: July 13, 2004 ___________________________

WILLIAM R. LaMARCA, J.S.C.

TO:Mintzer, Sarowitz, Zeris, Ledva & Meyers, Esqs.

Attorneys for Plaintiff

39 Broadway, Suite 950

New York, NY 10006

Farrell Fritz, PC

Attorneys for Defendants

Cross County Abstract, Inc. And First American title Insurance of New York

EAB Plaza

Uniondale, NY 11556

Joseph J. Ra, Esq.

Attorney for Defendant

Town of Hempstead

Hempstead Town Hall

Hempstead, NY 11550

Mulhern and Klein, Esqs.

Attorneys for Defendants

All Island Estate Realty Corp. and Richard Shane

3330 Park Avenue

Wantagh, NY 11793

sabbagh-pizzuro,#01,#02,#03(amend)/cplr