Podesta v Assumable Homes Dev. II Corp.

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Podesta v Assumable Homes Dev. II Corp. 2013 NY Slip Op 32445(U) October 7, 2013 Sup Ct, Suffolk County Docket Number: 04208/2008 Judge: William B. Rebolini Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Short Form Order SUPREME COURT- STATE OF NEW YORK l.A.S. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI .Justice Robert M. Podesta, James J. Podesta, John J. Podesta, Donald F. Podesta and Jane M. Prydatko, Plaintiffs, -againstAssumable Homes Development II Corp., Jed Pavlin, William Desalvio, Steven Prince, Robert Cox, Jeffrey Silver, Rocco Marini, Antonio Marini Shining Sung, Shankarji Corp., Durgaji Corp., State of New York and "John Doe" names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in the complaint Defendants. Assumable Homes Development II Corp. and Jed Pavlin, Third Party Plaintiffs, - against Mid lsland Abstract LLC and Fidelity National Title Agency of ew York, Inc., Third-Party Defendants. Index o. : 04208/2008 Motion Sequence No.: 010· MOT.D Motion Date: 6/12/1 3 Submitted: 7131113 Motion Sequence o.: 011 ~ MOT.D Motion Date: 6119/13 Submitted: 7131113 Attorneys/Parties [See Rider Annexed] [* 2] Podesta '" Ass um able Homes, ct al. Index No.: O.t208/2008 Page 2 Upon the fo llowi ng papers numbered I to 43 reac.1 upon th is application for di.-missal of the otice of Moti on and supporting papers. l - I I: complaint and motion to compel disc losure: Answering Affida\ its and supporting papers. 12 - 15; 32 - 34: Rep lying Affidav its and support ing papers. 16 - n: 35 - 43; it is ORDERED that this motion by defendant/third-party defendant. Fidelity National Ti tle Insurance Company of ew York, sued in thi s action as Fidelity ational Ti tle Agency of cw York. Inc .. (Fidelity) is granted only to the extent that the filth cause of action in the amended w rificc.I complaint for recovery in contract is hereby di smi ssed against it and in all other respects the motion is <lcni 'd , without prejudice to the making of an application fo r summary judgmc 1t fol lowing the completion or all discovery proceedings; and it is further ORDERED that the separate motion by plaintiffs for an order co mpelling disclosure is granted to the exte nt indicated herein and the parties are directed to appear before this Court on Wednesday, October 30, 2013 at 10 AM for a furth er preliminary conference, at which time a schedule for the atisfaction o r all discovery obligations, including the completion or depositions, shall be prepared. Plaintiffs commenced thi s action to recover damages and to establ ish the priority of a purchase money mortgage on an 11 -acre plot in the amount of $1, 187.500.00 that was allegedly given to them in 2003 by defendant/third-party plaintiff, Assumable Homes Development II Corp. (Assumable). It is alleged that as part of a subdivision application Assumable agreed to dedicate approximately 4 .6 acres of the property to the Town of Brookhaven for open space, and that in March 2006 plaintiffs agreed to release from their mortgage lien those 4.6 acres nder a parti al release. Plainti ns claim that the "Schedule A'' that accurately described the 4.6 acres that were to have been released from the lien was not recorded with the partial rel 'ase, however, and a handwritten "Sched de A" describing the entire 11 acre plot was erroneously substituted and attac hed to the partial rc lea · and filed in the office of the Suffol k County Clerk. Defendant/third-party defendant now mov 'S fo r an order dismissing the complaint against it. Pl aintiffs have opposed the appli cation. On a moti on to dismiss the complaint for fa ilur to state a cause of acti on, the Court must determine whether. accepting as true the factual avcrmcnts of the compl aint and granting plaintiffs every favorable inference which may be drawn from the pleading. plaintiffs can succeed upon an_ reasonable view or the facts stated (Bartlett v /(01111er, 228 /\.D2d 532. 644 IYS2d 550 [2d Dept 1996 J ). Pl aintiff ·· cla ims for recovery in breach or contract aga inst hd el ity must fo il since the panics did not have a contructual re lati onship. The O\ ncr·s policy oft itk in surance that was issued by Fi delity was given to the Town of'Brookha\'en. /\s plaintiffs m::rc neither parties to nor th irclparly bcncJiciarics oCthe po li cy issued to the Town of Brookhaven. the breac h of contract claim s asserted in the verified amended complaint must be dism issed (see East Coast A tltletic Club, foe. 1 ¢ C/1icago Title Insurance Co., 39 AD3d 461. 833 YS2d 585 [2d Dept 2007]). [* 3] Podesta v. Assumable Homes, et al. I ndcx No.: O.i208/2008 Page 3 To succeed on a motion to dismiss pursuant to CPLR 3211 (a)(1 ). the documentary evidence that Corms the basis of' the defense must be such that it resolves all factual issues as a matter oCJaw and cone usively disposes of the plaintiff's claim (see Estate of Menon v Me11011, 303 /\D2d 622. 756 NYS2d 639 f 2d Dept 2003J , citing Leon v Martinez, 84 Y2d 83, 88, 614 YS2d 972. 638 E2d 511, Roth v Goldman, 254 AD2d 405, 406, 679 NYS2d 92). To ti e extent that defendant/thi rd-party defendant Fidelity ·eeks dismissal of the fourth and sixth causes of action against it, such application must be denied. It is asserted in the amended verified complaint that the al leged '·alteration to the partial release was done by some agent or ~mp l oyec or the defendant Fidelity ... ·· Th law is well-established that a principal must answer to an innocent third person for the miscondu ct of an agent acting within the scope of its authority (Faith Assembly v Tit/edge ofNew York Abstract, LLC, 106 AD3d47, 961NYS2d542 [2ct Dept 2013]). While movant asserts that Mid Island Abstract LLC (Mid Island) was a limited policy-issuing agent for Fidelity the evidence submitted to the Court on the motion fails to conclusively establish such fact. The copy of the agreement that was submitted by movant is undated and it does not set forth the effective date of the agreement. Thus, the documentary evidence before this Court fails to prove that at the time of the underlying incident the agency agreement between fidelity and co-defendant Mid Jsland was limited solely to countersign and issue title insurance policies. Altho ugh defendant submitted in its reply papers an affidavit of merit by its Agency Representative/Bus iness Advisor, the submission of evidence in rep ly papers can not be considered in determining whether del~ndan met its initial burden of proof on the motion (see Sawyers v Troisi, 95 /\D3d 1293, 945 NYS2d 188 r2ct Dept 2012J). Moreover, absent conclusive evidence showing that Mid Island 's authority was expressly limited, it can not be _aid that the review and filing of a lien release on insured property was outside the scope of duties contemplated for a title abstract company. Likewise, movant has not sustained its initial burden of demonstrating that dismissal of the third-party cla ims against movant for contribution and/or indemn ification in negligence is warranted. To the extent that defendant fidelity also seeks an order granting summary judgment in its favor dis mi ssing the complaint against it, such motion is denied since no affidavit of merit was submitted in support or the application. It is well establ ished that where fac ts ssential to justify opposi tion to a mot ion for s 11nmary j udgment are exclusively within the knowledge and control of the movant , summa ry judgment may be denied, especiall y where the opposing party has not had a reasonab le oppo11Lm ity for d isclosure prior to the making of the motion (see Mazzola v Kelly, 29 1 AD2d 535. 738 YS2d 246 f2d Dept 2002) ; see also Baron v /11corporated Village of Freeport, 143 J\D2d 792 . .53" NYS2d 143 l2d Dept 1988]). Plaintiffs· separate motion to compel disclosure of items requested in the ir 1 otice for Di scovery & Insi ection elated October 27. 20 10. which was vvithd rawn by stipulat ion as agai nst defendant Fidelity. is granted to the extent that the parties shall disclose the names and add resses or all officers or Assumable I lomes Devel opment II Corp. in response to demand number I and the add resses req ues ted in demands 2 through 9. Disclosure of the information requested in demands 67 through 75 slnll ·il so be made to the extent th at ·uch demands seek the nc me <; am! addresses of em ployees or age nts. Cop ies ol'\\Titten communications demanded in items numbe red 82. 86. 87. 88 and 89 shall alSll be provi ded. The aforementioned disclosure shall be made vithin fifteen ( 15) [* 4] Podesta v. Assumable Homes, ct al. I ndcx No.: 0-f208/2008 Pagc4 days from the date o fthi. order. In all other respects tic motion is d 'nied. as the Pmaming demands a.re overly broad. or they seek information which is not material and necessary to the prosecution of plainti rrs claims or information that is publicly ava il able . f I ~;$~ Dated: HON. WILLIAM B. _ _ _ FINAL DISPOSITION X l~EBOLINI, NON-FINAL DISPOSITION .J.S.C. [* 5] RrDER /\ttorncv fo r P la im ifl~ · .'Vl azzci & Blair. hqs . 913 Montauk l l!ghway l3 1 Po int. NY I I 7 I _ue Uc fi.: ndan ts: /\ssumable I lorn es Devc lopmcnt I 0 Co mmerce Dr ive Fanningda l . t Y 11735 Jed Pav li n 330 Motor Park way, Suit<.: 20 I I lauppauge, NY I I 78 Attorney for Defend ant Shankarj i Com. and Durn:aji Corn .. indi vidually and as Assi gnors of Defendants William DeSa lvio, Steven Prince, Robert Cox, Jeffre y Silver, Rocco Ma rin i, Antonio Marini and Shining Suns: Darrell .1. Conway, P.C. 179 Litt le Cast eek Road Babylon NY 11 704 Attorney fo r Detendant LT Abstract, LLC: l loward L. Sherman, Esq. I 5 Croton Avenue Ossining, NY I0562 /\ nornev for Defendant _Bichard Olivio Enterprises, Inc.: Cahn & Cahn, LLP 22 II igh Street. uitc 3 Hun tington, Y I 1743 /\nomcv for Th ircl- Partv Defend ant Mid Island Abstract. LLC: 1:Abba1e, 13n lkan. 'ol a it a 8.:.. Co nt ini, LLP 1001 Frank li n /\venue Cia rdcn City, NY 11530 /\ ll.Q.!ll~Y.Jo r Th ird-Part ' Di.: lcndant Ficlelitv Nat ional Tit ! ¢ A!.!enc\' of New York . Inc .: Twoml.!y. Lmhalll. Shea. r<cllcy. Dubin & Ouanararo. 1.1.P 33 West Second Street. P.O. Box 93C)8 Rivc rhl.!ad, Y I I 90 I Clerk of the Cou n

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