Hopper v Leogrande

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Hopper v Leogrande 2011 NY Slip Op 32654(U) October 4, 2011 Sup Ct, Nassau County Docket Number: 004261/10 Judge: Jeffrey S. Brown 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 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRE S E NT: HON. JEFFREY S. BROWN JUSTICE TRIAL/IAS PART 21 KAREN RIBARO HOPPER, Plaintiffs, Index No. 004261/10 - against - MICHAEL LEOGRANDE , KIM LEO GRANDE, ROBERT PINTUCCI, FERN PINTUCCI JERRY DABROWSKI and ELIZABETH DABROWSKI, Mot. Seq. # 05 Mot. Date 8Submit Date 9- Defendants. MICHAEL LEOGRANDE Third- Party Plaintiff, -against- FIRST AMERICAN TITLE INSURANCE COMP ANY OF NEW YORK, Third- Party The following papers were read on this motion: Defendant. Papers Numbered Notice of Motion , Affdavits (Affirmations), Exhibits Annexed.................... Answering Affidavit............................................................................................. Reply Affidavit................................................................ ' Third- party defendant FIRST AMERICAN TITLE INSURANCE COMPANY OF NEW YORK , (hereinafter " First American ) moves by notice of motion for the following relief: a) an order pursuant to CPLR 3211(a)(1) and (7) dismissing the third- party complaint; b) granting First American costs and attorneys fees. [* 2] Third- party plaintiff MICHAEL LEOGRANDE (hereinafter " Leogrande ), and his , Bethpage , NY estranged wife , Kim Leogrande , purchased premises known as 155 Floral Avenue issued by on September 5 , 2003. Leogrande seeks indemification under a title insurance policy First American. In the principal action , plaintiff KAREN RIBARO HOPPER seeks injunctive relief and damages against all defendants , including Leogrande , with respect to a Declaration of , Page 664 Driveway Easement dated June 10 , 1983 and recorded August 26 , 1983 in Liber 9496 in the Nassau County Clerk' s Offce (hereinafter " Right of Way ) allegedly affecting the premises. First American states that the title policy specifically excludes from coverage any loss or damage which arises by reason of the Right of Way. In support of its application , First American attaches a copy of the title policy s Schedule " B" and the Survey Reading. It argues that since the Right of Way is specifically excluded from coverage under the title policy, the third- party complaint fails to state a valid claim and the third- party complaint must be dismissed. Leogrande opposes the application stating that First American failed to discover and appropriately report in its title search and ultimately its fee title policy, a recorded declaration of mutual driveway easement which was discovered only by virtue of the underlying lawsuit. The written easement gives rights to three separate property owners located behind Leogrande property, the right of ingress and egress by foot and vehicle over a substantial portion of the property and provide that a substantial portion of the property must be kept open and unobstructed as a passageway or driveway. The attorney for Leogrande states that he is personally familiar with the facts and circumstance herein as he represented Leogrande at the closing of the premises. Leogrande states that the portion of the mutual driveway easement affecting the property is undetectable to the eye and no portion of the property has ever been used as a driveway or passage way for the three lots benefitted by the easement. Moreover , a prior owner planted trees that have existed on the property for more than fifteen years which covers a portion of the easement. Leogrande asserts that at the time of the closing, he and his attorney had no idea that there was a driveway easement in addition to utility easements that were returned in the title report. Leogrande s attorney states that in connection with its title search , First American obtained an existing survey from a prior insurer in the chain of title and conducted a survey inspection on September . , 2003 just three days before the closing. The attorney states that the survey and survey reading were only seen by him at the closing table. He argues that First American s reliance on the survey reading absolving them of liability is contrary to law. In reply, First American urges the court to reject Leogrande s strained attempt to create an ambiguity in the applicable policy exclusion here. Whereas , item D of the Survey Reading [* 3] plainly states that the survey " also shows... Westerly terminus of a 30 foot Right of Way extends onto the southerly side of the subject premises. Rights and easements of others to use same thereby excepted" First American argues that nowhere in Leogrande s opposition papers does he dispute that this right of way is the very same easement upon which plaintiff Hopper s lawsuit is based. Moreover , Leogrande s attorney admits that he represented him when he purchased the property. As an experienced real estate attorney, he knew at the time of closing what was being excepted from his client' s title insurance policy. As such , the attorney s failure to dispute that Item D of the Survey Reading was the right of way in question in the main action here nullifies Leogrande third- party complaint. The fact that the policy exclusion could have been phrased differently is legally irrelevant. Since the manner in which the policy exclusion was phrased was clear and unambiguous , the exclusion must be. applied. Base on the foregoing, the decision of the court is as follows: To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence which forms the basis of the defense must resolve all factual issues as a matter oflaw Metropolian Life Ins. Co. 5 . Goldman and conclusively dispose of the plaintiffs claim (see FBG FG Harriman Commons, LLC NY3d 561 571 841 N. E.2d 742 807 N. Y.S. 2d 583; Admiral 75 AD3d 527 527- 528 906 N. Y.S. 2d 62; GuideOne Specialty Ins. Co. Owners, LLC, Ins. Co. 57 AD3d 611 613 869 N. Y.S. 2d 565). Although the facts alleged in the complaint are Leon regarded as true , and the plaintiffs are afforded the benefit of every favorable inference (see 638 N. 2d 511 , 614 N. Y.S. 2d 972), allegations consisting of Martinez 84 NY2d 83 87bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are 20/20 Cos. 82 AD3d 915 , 918 N. Y.S.2d 585; Adler not entitled to any such consideration (see Calabria-Maher 1 AD3d 422 , 422- 423 , 766 N. Y.S. Prudential Wykagyl/Rittenberg Realty Snug Harbor Sq. Venture 299 AD2d 329 330 , 749 N. Y.S. 885; New York Community Bank 2d 716). , 721N. 2d 966 699 N. Cornell Univ. 94 NY2d 87 Maas 170; see also Ramjohn 85 A. 3d 987 Nisari The policy submitted by First American excepted from coverage Item D of the Survey Reading which plainly states that the survey " also shows... Westerly terminus of a 30 foot Right of Way extends onto the southerly side of the subject premises. Rights and easements of others to use same thereby excepted" (AJ policy of title insurance is a contract by which the title insurer agrees to indemnify Title Guar. Co. , 52 its insured for loss occasioned by a defect in title (1. Smirlock Realty Corp. Goldberger 31 AD3d 693 Darbonne NY2d 179 , 188 418 N. 2d 650 , 437 N. Y.S. 2d 57; see 695 821 N. Y.S. 2d 94). " As with any contract , unambiguous provisions of an insurance contract must be given their plain and ordinary meaning. . . and the interpretation of such provisions is a [* 4] (White question oflaw for the court" 9 NY3d 264 , 267 878 N. Chicago Tit. Ins. Co. 80 AD3d 546 549 914 N. Y.S. Continental Cas. Co. Appleby 1019 848 N. Y.S. 2d 603; see Ramjohn supra. at 989. 257). '" Nisari Applying the above principals to the case at bar , the documentary evidence submitted by First American contradict the allegations contained in the third- party complaint. There is no claim by Leogrande that the exception noted in Item D of the Survey Report is different than the driveway easement upon which the third- party action is based. As such , the court will not rewrite the terms and conditions of the contract herein where the language of the contract is unambiguous. The court determines that the third- part action must be dismissed. Accordingly, it is ORDERED , that the application pursuant to CPLR 3211(a)(1) and (7) dismissing the third- part complaint , is GRANTED. This constitutes the decision and order of the court. All matters not specifically addressed herein are denied. Dated: October 4 , 2011 ENTERED OCT 11 2011 NASIAU COUNTY COUNTY CLERK' S OFFICE Attorney for Plaintiff Defendant Pintucci pro se Regina A. Matejka , Esq. 1225 Franklin Avenue , Ste. 406 Garden City, NY 11530 Robert Pintucci / Fern Pintucci Attorney for Defendant/3d pty Pltf. Defendant Dabrowski pro se Michael Leogrande Bruce E. Barnes , Esq. 400 Garden City Plaza , Ste. 430 Garden City, NY 11530 Jerry Dabrowski / Elizabeth Dabrowski 151 Floral Avenue Bethpage , NY 11714 149 Floral Avenue Bethpage , NY 11714- 1218 Atty for 3d pty Deft American Title Ins. Defendant pro se Miler Rosado & Algios , LLP Kim Leogrande 155 Floral Avenue Bethpage , NY 11714 200 Old Country Road , Ste. 590 Mineola , NY 11501

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