United Gen. Tit. Ins. Co. v Meridian Abstract, Corp.

[*1] United Gen. Tit. Ins. Co. v Meridian Abstract, Corp. 2010 NY Slip Op 52363(U) [30 Misc 3d 1214(A)] Decided on December 17, 2010 Supreme Court, Nassau County Warshawsky, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2010
Supreme Court, Nassau County

United General Title Insurance Company, Plaintiff,

against

Meridian Abstract, Corp. and Anthony M. Bellini, Defendants.



017502/08

Ira B. Warshawsky, J.

PRELIMINARY STATEMENT

United General Title Insurance Company ("UGTIC") has moved for summary judgment in its action against Meridian Abstract, Corp. and Anthony M. Bellini.

The action arises because a property that defendant Meridian caused to be insured by plaintiff with a guaranty of "free and clear title" was still encumbered by a mortgage for which payoff funds had not been secured at closing by defendant Meridian. The error resulted because a representative of Meridian relied on a "payoff letter" that contained false payoff figures to secure payoff funds that were insufficient to pay the full amount of the mortgage that encumbered the property. When payoff was attempted, the shortfall was $105,170.49. Although the defendants' [*2]Answer denies most allegations in the Complaint, the submissions on this motion, including affidavits and depositions of Meridian's representatives, admit to these facts.

The terms of the contract between Meridian and plaintiff UGTIC are not disputed. UGTIC agreed to "appoint[] Agent [Meridian] as its representative or agent for the limited purpose of originating and soliciting applications for and to sign, counter-sign, collect premiums for and issue, on behalf of Company title insurance products of the Company... according to the rules, regulations, procedures, instructions and directives of the Company..." (Robinson Aff. Ex. C, ¶ 2.1). In exchange for such appointment and provision of title insurance, Meridian promised to undertake certain duties and responsibilities, including to "[m]aintain and operate a business office devoted to the conduct of a title insurance agency business, according to sound and ethical business principles...," (id. at ¶ 3.1[1]) to "[c]omply with all instructions, bulletins, manuals, requirements, directives, guidelines, rules and regulations established and promulgated, from time to time by the Company," (id. at ¶ 3.1[2]) and to "[d]etermine insurability of title to each and every parcel of land to be insured" based on a thorough examination and investigation of abstract of title, public records, and title reports and opinions. (Id. at ¶¶ 3.1[3][a]-[c]).

Meridian also agreed to indemnify plaintiff UGTIC for losses which UGTIC sustains as a result of "[f]ailure of Agent to comply with the terms of this Agreement including but not limited to... the rules, regulations, directives, policies, procedures, or instructions given to Agent by Company" (id. at ¶ 5.1) and "[e]rrors or omissions which are disclosed by the application for title insurance, examiner's report, searcher's report or other defects, liens encumbrances or matters affecting title to real property which were known to the Agent or, in the exercise of ordinary care and due diligence, should have been known to Agent" (id. at ¶ 5.2).

PROCEDURAL STANDARD

Summary judgment terminates a case before a trial, and it is therefore a drastic remedy that will not be granted if there is any doubt with regard to a genuine issue of material fact, since it is normally the jury's function to determine the facts. (Sillman v. Twentieth Century-Fox Film Cor., 3 NY2d 395 [1957]). When summary judgment is determined on the proof, it is equivalent to a directed verdict: if contrary inferences can reasonably be drawn from the evidence, then genuine issues of material fact preclude summary judgment. (Gerard v. Inglese, 11 AD2d 381 [2d Dep't 1960].

It is not the court's function to weigh the credibility of contradictory proof on a motion for summary judgment. (Ferrante v. American Lung Assoc., 90 NY2d 623 [1997]). Thus the evidence will be considered in the light most favorable to the opposing party. (Tortorello v. Carlin, 260 AD2d 201, 206 [1st Dept. 2003]). However, where a party is otherwise entitled to a judgment as a matter of law, an opposing party may not simply manufacture a feigned issue of fact to defeat summary judgment. A material issue of fact "must be genuine, bona fide and substantial to require a trial." (Leumi financial Corp. v. Richter, 24 AD2d 855 [1st Dep't 1965] quoting Richard v. Credit Suisse, 242 NY 346 [1926]).

If a party has presented a prima facie case of entitlement to summary judgment, because no triable issues of material fact exist, the opposing party is obligated to come forward and bare his proof by affidavit of an individual with personal knowledge, or with an attorney's affirmation to which appended material in admissible form, and the failure to do so may lead the court to [*3]believe that there is no triable issue of fact. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]).

Summary judgment is therefore appropriate only if a party is entitled to judgment as a matter of law, either, because any dispute involves only issues of law (see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986], because the record objectively establishes that a party will not be support its allegations or otherwise meet its burden of proof (Ferluckaj v. Goldman Sacks & Co., 12 NY3d 316 [2009]), or because any unresolved factual dispute is immaterial to the ultimate judgment or it arises from patently incredible evidence (Bank of New York v. 125-127 Allen Street Assoc., 59 AD3d 220 [1st Dep't 2009]; see Glick v. Dolleck, Inc. v. Tri-Pac Export Corp., 22 NY2d 439, 441 [1968]).

DISCUSSION

In support of summary judgment, the plaintiff has submitted the affidavit of a representative of NovaStar, which held the mortgage on the premises at issue, which avers that the company's computers log all incoming calls for each account and there is no record of a call to verify the payoff figures for the mortgage. (Robinson Aff. Ex. H, "Connely Aff."). The plaintiff has also submitted telephone records which indicate that no call from Meridian's representative was placed to NovaStar's toll free number as reflected on the payoff letters (including the letter with false figures). (Robinson Aff. Ex. I). The plaintiff has also submitted expert testimony to establish that verification of inconsistent mortgage and payoff amounts was customary and necessary in the exercise of due diligence at real estate closings, as well as some company literature and bulletins which indicated that plaintiff's agents should always verify the payoff amounts. (Robinson Aff. Exs. N & O). Finally, plaintiff has submitted the inconsistent testimony of Meridian's representative, Kaplan, to indicate that Meridian had knowledge of the inconsistent figures but did not verify the payoff amount. (Robinson Aff. Ex. J).

In response, the defendants submit that Meridian was entitled to rely on the payoff letter, and that in any case, its representative Kaplan did verify the payoff figures by speaking with NovaStar. In proof, defendant Meridian submits the affidavit of Aleksey Kaplan, averring that he was the title closer at the transaction at issue, and that "[i]n every real estate closing in which I have acted as the title closer, I have always verified the amount of the payoff letter on the date of the closing. Thus, on May 1, I telephoned NovaStar to verify the payoff amount set forth in the payout letter..." (Bellini Aff. Ex. B, "Kaplan Aff."). Defendants also submit the deposition testimony of Mr. Kaplan (Bellini Aff. Ex. C, "Kaplan Dep.") and an affidavit by the sellers, averring that the payoff figures were correct as represented to the title closer. (Bellini Aff. Ex. J, "Alejo Aff.").

The sole issue that could remotely demand a trial in this case is whether the representative of Meridian, Mr. Kaplan, verified with NovaStar the payoff figures for the mortgage that was still encumbering the premises to be sold. Though the issue is simple and easily supportable, the defendants have utterly failed to come forward with their proof, available only to them, to verify the inconsistent and incredible allegations by Meridian's representative that he in fact verified the mortgage amounts (Kaplan Aff. ¶ 4) or that he tried calling to verify the payoff amounts but his call was re-routed. (Kaplan Dep. 44 — 45). The defendants have not produced any documentation or business records (as might be kept in the exercise of due diligence) which would indicate whom Kaplan spoke to in order to verify the payoff figures; nor have they produced any [*4]telephone records which might indicate that Kaplan did attempt to reach a representative of NovaStar. Indeed, the Agreement with the plaintiff required Meridian to maintain accurate and complete records of any title that was insured as free and clear through Meridian's closing agents. (Robinson Aff. Ex. C ¶ 3.1[4]).

The plaintiffs have presented a prima facie case of entitlement to summary judgment. The contract required Meridian to follow particular procedures in the exercise of due diligence, and Meridian agreed to indemnify UGTIC for failure to follow such procedures or for causing UGTIC to insure title despite "[e]rrors or omissions which are disclosed by the application for title insurance... or, in the exercise of ordinary care and due diligence, should have been known to the Agent." (Robinson Aff. Ex. C ¶ 5.2). Meridian in fact caused UGTIC to insure title in this case despite knowledge of a prior mortgage in the amount of $309,724.94, dated only two months before this closing was to occur.

But for Mr. Kaplan's inconsistent testimony regarding verification of the payoff figures, all issues are admitted to or matters of law. Though defendants argue in their memorandum of law that no verification call was required under contract, they fail to appreciate clause 5.2 of the contract. In this case, it is undisputed that the title report and other documents had revealed a prior mortgage encumbering the property for $309,724.94 as of March 10, 2006, and yet Meridian caused UGTIC to insure title with only $203,724.94 secured as payoff funds for the prior mortgage.

As a term of art in real estate transactions, this court may interpret the ambiguous term "due diligence" in light of trade practice and usage. (See 22 NY Jur. 2d Contracts § 230, and citations therein). The plaintiffs have presented expert testimony establishing that verification of the pay off figures was part of the standard "due diligence" that a closing agent must perform. (Robinson Aff. Ex. N). Moreover, the literature that UGTIC submits establishes that bulletins and directives which Meridian was required by its contract to follow, required it to verify payoff figures. (Robinson Aff. Ex. O)

A representative of NovaStar, Julia Connely, avers that NovaStar's computer records logged all incoming calls, including those for payoff verification. Connely avers that the payoff figures provided to the defendants were those for $309,724.94 and that no representative from Meridian ever called NovaStar to verify the payoff figures. (Connely Aff. paras. 3-4).

Kaplan's statements alleging that he called NovaStar, or that he attempted to call NovaStar but his call was surreptitiously re-routed fails to raise a genuine triable issue of fact. The reasoning that applies to these facts is analogous to the doctrine of res ipsa loquitur in negligence: the false figures could have been so easily discovered, that such figures would not have been relied upon, but for either Meridian's or NovaStar's failure to exercise due diligence in checking the payoff figures. In other words, either NovaStar provided incorrect confirmation of payoff figures (for which there is no evidence in the record), or Kaplan failed to perform due diligence to verify the payoff figures. The court notes that the third option, suggested for the first time by Kaplan at his deposition, that the call was surreptitiously re-routed from the toll-free number, is incredible on its face without further support.

Kaplan admits that he learned four weeks after the closing that the property that he helped guaranty with free and clear title was still encumbered by a shortfall in the payoff amount. (Kaplan Dep. 20: 21-23). Yet at that time he did not raise the issue that NovaStar had negligently [*5]provided and verified incorrect payoff figures.

Under well established case-law, a feigned issue of fact cannot defeat summary judgment. Kaplan's Affidavit and Deposition are inconsistent and at times patently incredible. Though Kaplan's allegation was easily supportable, defendants failed to bare their proof on this issue. Moreover, even if Kaplan's testimony was believed, it still fails to explain why oral verification of the payoff figures was sufficient due diligence in the industry where there is $100,000 discrepancy in the amount of the mortgage as of March 10, 2006 and May 1, 2006.

CONCLUSION

Plaintiffs proffer of proof and law creates a prima facie case for judgment as a matter of law, as no genuine and triable issues of fact arise from the evidence. Defendants' proof fails to rebut the plaintiffs' entitlement to judgment as a matter of law and to raise any issues of fact which demand the resources of a trial. Plaintiff's motion is granted.

Submit Judgment.

This constitutes the Decision and Order of the Court.

Dated: December 17, 2010

J.S.C.