Weston v Smith

[*1] Weston v Smith 2006 NY Slip Op 52617(U) [21 Misc 3d 1107(A)] Decided on March 7, 2006 Supreme Court, Jefferson County McGuire, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 7, 2006
Supreme Court, Jefferson County

Richard A. Weston, Plaintiff,

against

Donald R. Smith, Carol A. Smith, Robert Bennison and Walt Christensen Realty, Inc., Defendants.



2003-2438



Appearaces of counsel are as follows:

Thomas F. O'Brien, Esq., for Plaintiff

Hiscock & Barclay, Rochester (Tara J. Sciortino of counsel), for Defendants Robert Bennison and Walt Christensen Realty

Slye & Burrows, Watertown (James A. Burrows of counsel), for Defendants Donald R. Smith and Carol A. Smith

Joseph D. McGuire, J.

Defendants Robert Bennison and Walt Christensen Realty, Inc. have applied to the Court for summary judgment dismissing the Complaint (CPLR 3212). In addition to joining in that Motion, Co-defendants Donald R. Smith and Carol A. Smith have also sought an order on their behalf dismissing the Complaint as to them (CPLR 3212).

Plaintiff Richard A. Weston has filed a Cross-motion for permission to file an Amended Complaint (CPLR 3025(b)), and for summary judgment as well (CPLR 3212).

All parties are treating the motion as one for summary judgment (CPLR 3212), even though Plaintiff's counsel has alluded to it being treated differently.

The underlying action arises out of an easement agreement. Defendant Robert Bennison is a real estate sales agent with Defendant Walt Christensen Realty, Inc. Plaintiff Richard A. Weston purchased property from David Walbridge, and Bennison and Christensen Realty were the listing and selling agents. The property purchased by Plaintiff from Walbridge was subject to an easement Walbridge had previously deeded to Skolnys. That easement was written and covered a period from 2000 through 2002, and it was extended orally from 2003 through 2006. [*2]

In 2001, Skolnys entered into a purchase and sale agreement with Defendants Donald and Carol Smith. As part of the sale from Skolnys to Smith, the seller's attorney prepared a written Easement Agreement intended to be signed by Plaintiff and Co-defendants Donald and Carol Smith.

Bennison delivered the Easement Agreement to Plaintiff, and Plaintiff signed the Agreement, and Bennison thereafter forwarded the Agreement to the attorney for Skolnys. Skolnys thereafter deeded premises to Smith, Smith signed the Easement that had previously been signed by Weston, and the Deed and Easement were recorded in the Jefferson County Clerk's Office.

Plaintiff claims in the Complaint that there was fraud and misrepresentation on the part of Defendant Bennison, for which Plaintiff has been damaged, that the Easement Agreement was without consideration and should be cancelled and rescinded, and there was no payment from Defendant Smith for the year 2003 for the easement.

Defendants Bennison's and Christensen's Motion seeks dismissal for failure to state a cause of action for fraud because of insufficient pleading (CPLR 3016(b); CPLR 3211a(7)), and because the proof does not provide clear and convincing evidence of fraud as a matter of law. Defendant Bennison's argument is based on an Attorney Affidavit that incorporates certain exhibits, party affidavits, as well as the deposition testimony provided by the parties.

Defendants Smith join in Bennison's argument and further argue that valuable consideration was present when Smiths paid money for the lot that contained the easement, and the amount paid by Smiths included consideration for the easement, and other consideration was present as well. The Smith arguments are supported by Affidavits of the parties, attorney affidavit and the deposition references.

In the Opposition Affidavit of Plaintiff, Plaintiff does not deny that he signed the Easement Agreement, but he claims he was misled and did not understand the document he was signing and did not read it. Plaintiff claims that he expected to be paid annually for the easement, and it was not until no payment was made that he read the easement and had his attorney review it. Plaintiff also claims that testimony given by the Plaintiff at the deposition has been misrepresented. He also, through his attorney, says there was no consideration for the easement and it was void.

APPLICABLE LEGAL PRINCIPLES.

1. Pleading. A complaint that fails to state a cause of action may be dismissed on motion (CPLR 3211(a)(7)). Before such a dismissal, the pleader must be given all favorable inferences, and the pleading is to be liberally construed, and facts alleged are to be accepted as true (Leon v. Martinez, 84 NY2d 83; Rovello v. Orofino Realty Company, 40 NY2d 633; 511 West 232rd Street Owners Corp. v. Jennifer Realty Co., 98 NY2d 144; Sokoloff v. Harriman Estates Development Corp., 96 NY2d 409).

2. Fraud Pleading. A cause of action sounding in fraud has a special pleading rule (CPLR 3016(b)). Detail is needed of the misrepresentation, of the material fact misrepresented, of the falsity of such a misrepresented fact, of intent to defraud, of reliance on the deception, and injury (Channel Master Corp. v. Aluminum Limited Sales, Inc., 4 NY2d 403).

3. Amended Pleadings. Permission to amend pleadings ". . . shall be freely given upon such terms as may be just . . . " (CPLR 3025(b)). If there is a delay in seeking the amendment, [*3]that is a factor considered by the Court in exercising its discretion, but alone is insufficient to deny a motion to amend where an excuse has been provided, and there is no prejudice or surprise to the other party (see Siegel, NY Practice, 4th Edition, §237). "Mere lateness in the filing of such a motion does not bar the amendment. Rather there must be lateness coupled with significant prejudice to the other side' (Edenwald Construction Co. v. City of New York, 60 NY2d 957) . . . " (Smith v. Oneida Sales and Service, Inc., 2006 WL 259737(NYAD 4 Dept.)). Where the proposed amended pleading contained as many new factual allegations and " . . . is a substantial expansion of the original complaint and essentially seeks to re-plead plaintiff's case" (Moon v. Clear Channel Communications, Inc., et al., 307 AD2d 628), such motions have been denied as an abuse of discretion.

4. Summary Judgment. The drastic remedy of summary judgment is permitted when there are no triable issues of fact and there has been a prima facie showing an entitlement to judgment as a matter of law, and the opponent of the application has not come forward with evidentiary proof to show triable issues of fact or provide an acceptable excuse for failing to do so (Andre v. Pomeroy, 35 NY2d 361; Zuckerman v. City of New York, 49 NY2d 557; Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395; Winegrad v. New York University Medical Center, 64 NY2d 851; Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 NY2d 1065; Alvarez v. Prospect Hospital, et al., 68 NY2d 320). The evidence must be viewed in a light most favorable to the non-moving party (see Klembczyk v. DiNardo, 265 AD2d 924, [4th Dept. 1999]).

DISCUSSION.

In order to satisfactorily allege fraud, there must be a showing of misrepresentation of a material fact. The Plaintiff's testimony at the deposition indicates that Mr. Bennison did not make any comments or representations to Plaiintiff with respect to the easement document that was signed by Plaintiff. Further, Plaintiff said that another individual not a party to this lawsuit was the one who tried to make him relinquish a right-of-way. Under the circumstances, Plaintiff's own testimony is in conflict with the Complaint in which Plaintiff says that Robert Bennison made explanation of documents and knew representations were false, but at the same time plaintiff says under oath there were no such representations. The facts as presented by Defendants' counsel here clearly indicate there was no fraud on the part of Defendants Bennison or Walt Christensen Realty, Inc. The essential elements have not been properly alleged or proven, either by affidavit or by deposition or any other means. There is no claim of any fraud against Defendants Smith.

The application to amend the pleadings to insert additional information is one filed some two years after the original action was started. No explanation for the delay has been provided. Further, it appears from affidavits of all parties that there has been extensive pre-trial discovery, including depositions and disclosure. Additionally, the proposed amendment appears to be a substantial expansion of the original complaint and is an entire re-pleading. There is extensive prejudice here to the Defendants by having to now meet additional allegations, continue with additional discovery, re-depose parties, and essentially start the action over again. Under these circumstances, the significant prejudice to Defendants is clear, and there is no justifiable excuse presented by Plaintiff. Further, based on Plaintiff's existing testimony, the case for fraud cannot be made under the facts here presented. Speculative hindsight does not create a cause of action [*4]where none exists.

Lastly, the Court concurs with the arguments presented by Defendants Smith regarding consideration. The consideration provided for the easement includes the funds paid in part for the purchasing of the lot, but it also includes the forbearance on the part of Smiths from interfering with rights of other parties in the use of an easement. Under the circumstances, Defendants Smith's request for dismissal is appropriate as well.

In accord with the foregoing, it is

ORDERED, ADJUDGED AND DECREED, that the Motion of Defendants Robert Bennison and Walt Christensen Realty, Inc. for dismissal pursuant to CPLR 3212 be and the same hereby is GRANTED, and the Complaint is dismissed as to them, and it is further

ORDERED, ADJUDGED AND DECREED, that the Motion of Defendants Donald R. Smith and Carol A. Smith for judgment pursuant to CPLR 3212 be and the same hereby is GRANTED, and the Complaint as to them is dismissed, and it is further

ORDERED, ADJUDGED AND DECREED, that the Cross-motion of Plaintiff and the application to amend the Complaint be and the same hereby is DENIED.

ENTER

Dated: March 7, 2006

Lowville, NY

Hon. Joseph D. McGuire, J.S.C.