Cadet v James B. Nutter & Co.

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Cadet v James B. Nutter & Co. 2013 NY Slip Op 34012(U) August 8, 2013 Supreme Court, Kings County Docket Number: 519/11 Judge: David I. Schmidt 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....,,..1 ......... ..,,.l" ... fWl/M'IJ. 1] At an !AS T•nn, Part Com-2 of tbcSupmnc Coon oftbe Sla••ofNow York, held in and for die County of Kings, at !he Courth;,..sc, at Civic Center, Brooklyn, New York, on !he 30• day ofJuly, 2013. PKESENT: HON. l>AVIV L SCH."'11D'I', .. .... ....... - ...... - - .... - - ................... -X Pl>intiff. .. ipin:st - Index No. 519111 JAMES B. NVTTBR&COMPANY, LEXINOT01'1 C1.PITAL CoRP., A1''0 An,.,t1.1 ·r1rrr.$~r.:N. Dolcndan!S. - - • - - - - - - - - • - • - • ••• - - - - • - - ••••• - - -X The fqlfo'-'ing papers numbered I to 2 tc!d on 1his morion: l'oticc of Motionl<>r<kr 10 Show c...,..; Pct.itinnJCros:s !\iution and Affidnvits (Affirm.mjons) Annexed..__ _ Oppooivg ADidaviL• (Atlinruttions),_ __ __ _ __ _ 4.5 Reply Affidavits (Affirmation•),_ _ _ __ _ _ __ _ 6-9 _ __ _ ,\ftldavit (Affirmu1ion),_ __ _ _ _ __ OIJ1cr Papers._ _ _ _ _ __ _ _ _ _ __ _ __ Upon the fon:going papers, defendant Jam.,; B. Nuner&. Company (Nuner) I!lO\'<S for an order pursuant to CPLR §3016 (b), §3211 (a)(l) and §3211 (a) (7) dismissing all of lhe causes of action asserted ogn.in:it Nutter in plaintiff (t i~elc C:1dct'l> nended complaint. -·- [* 2] Background Dcfcrnlant Nuner;,. a company in the business of providing homc<'quity wn,<ersion loans (commonly referred to as a revers<: m0rtgage) !()borrowers throughout the United States. ' Oefendaot Lexington Capital is a mortgage brokerage l\nn. On or aboutJunc 2009, plaintiff ond hc:r now dee.,....,.) husband Gerard Cadet. sou••u to refinance the mOrt<ta•e on "' -o their premises located al 116 East 57'" Street in Brooklyn because they had fallen behind on the pa.)·ments. It appears lhat the Cadets mci. \Yit.h defendant Adam ·1bie.t..~cn ,..,·ho \Y8S employed by Lexington. Ultimately • reven;e mortgage was taken oot solely by Gcnud Cadet on July 8, 2009, by and through a power of attorney held by plaintiff. This rcvc-rse mortgage was recorded oo July 29, 2009 and was deemed a Home Equity ConvcTSion RcvCT>C Mortgage. lt uppeatS that in order tOrthe Cadet's to b,,rrow an amount ofnloncy :iuflicient to pay offLlidr cxistingmortgog.,. it was ncocssary for plaintiff to deed title to the home solely rn her husband, who was older. Mr. Cadet passed away on July 27, 2009, three weeks afte: the closir1g. Plaintiff contends tllat on or about June 11, 20 I0, Nutter infonncd her that the entire mortgage wm due and payable because a condition ofthe mongag< was !hat il was due upon Gcrnrd Cadet's death. Nutter stated that it v,.as prepared to commence a fon:closurc proceeding if the mortgage wa> no< paid bnck by a ccrtuin date. 'A C'C1-'CTSC mortg~e allows borTOv.'CtS 62 years of age nnd older to obtain cash by pJ«lgiJ\g their home as security for the lotin No monga.gc payn1cnts are made- during the-lifetime ofd>c bom>\.~'crs so long iu ut least one horrower resides in lhe house. At such rjnlc a-: I.he borto'\\'Cr dies., moves. ot scll.s the home cbc entire mortgage \\1ill come due. 2 [* 3] Plo.intiff subsequently commenced the instant lawsuit containing claims of fnsud, fraudulcnl induccmenl and negligence. ?<\'uttq's Morion Nuner mov"'' for 11n order pursuanuo CPLR §3016 (b), §3211 (a)(l) and §3211 (•) (7) dismissi.t1g all of the cau~ of 1;1ction 3.."iSCrt.ed against Nuner in plaintiff's amended complaint Nuner argues that plaintiff's negligence claim musl fail inasmuch as Nunerow<-d no cogni1.ablc duty of care lo plaintiff because no relarionship e.xistcd between Nuner and plainti!Tslncc ii W1IS Mr. Cadet that was Ibo sole lllOflll•gor. Accordingly, Nuner aigucs lhis cl•im should be dismissed pur<uant to CPLR 321 1 (• ) (7). "On a motion to dismiss pwsuant to Cl'LR 3211 (•) (7), lhe C0\111 mUJI determine, aci,;c::pting ns true the fnctuaJ avcrrnent.~ of the complalnt untl nccording, the plaintiff the benefit or oil favorable infercnc.., whether lhc plainrifT Cllil succeed upon any reasonable view of die facts as slllted" (Mo11{ro v McGivney, 11 AD3d 662, 663 (2004) [iniemal quota1jon..' omitted]); ho"·ever. "raJllidavits and other' e\.idcntiary matt:riat may also be cuosidcrcd lo •establi$h conclusively th31 rlaintiff" hiu no cause of action'" {Simmons v EdelJtein, 32 AU3d 464, 46512006], quoting Rqvel/o • Orufmo R<all)! Co.. 40 NY2d 633, 636 ( J9761). Moreover, "conelu~oryallcgatiorur-claimscon<isting ofbarc leiial eonclu.<ions with no (l\CtuaJ spt:eificit)<-arc insufficient lO S"t.UVive a moliOn to dismiss"' (Go<lfrey v Spano. 13 NY3d 358, 373 [20091, citing Coniglio vChfcago Tribtu1e-N.Y. Ntws Syndical•. 204 AD2d 233, 233-23411994)). ) [* 4] . -·~= .. Fof a plainti!Tto survive• motion •o dismiss for tlUJurc to >Ulte a causc ofaction, the factual al cgations in the daim CllIUlOI be ~'mcrcly conclusory and. speculalivo in nature ond 11vt supi.ed by any >p<<ific fact$" (Re3Wtnts/or" Mou Beautiful Pon Wtuhingron, Inc. v Town ,North Hempstead. l 53 AV3d 727, 729 (I 989)). "Tiie alleptions i11 the complaint can.not b vague and eonclusory" (S101anoff v Ga/zona, 248 AD2d 525 [ 1998). appeal dismiss. 92 NY2d 844 (1998). cert dt!llied sub nom. Stoianoffv New York Times, 525 US 953 (199 c lJntlafy to the plaintiffs claims in her amended complain~ Nutter did not owe her any duty with regard to the rcvcr•o mortgage at issue, especially in light of the fact that she "a.:> OOl C'Vetl lb_~ bofro\,'Cf, and \VQ merely acting 8S 3llCJr'iley in (JtCt for her hu.sband in this transaction (see Mathurin v lost & round Recovery, LLC, 65 AD3d 617, 617-618 [2009] [holding that bank did not owe a dUty, in cff~ to pm<cnt the defendant< from inducing plaintiff inr.o entering into a fraudulent n1ortgagc transaction pursuant to \vhich they allegedly cITected the ttansfcr of n:al property ownod by the plaintllJto anathcr entity under the guise ofhelpillg the plaintiff to n:financc h<r mortgugej; see al.<o Harri.:! v Adejumo, 36 AD3d &55. 856 [20071; Burg~r v Slngr~ 28 AOJd 695. 69712006]; Tenen/xrum v Gibb•, 27 AlJ3d 722, 723 [2006J;8cckft>rdvf'/or1hea.<1tmMlge. Inv. Carp., 262AD2d436, 437 [1 999]; Chemical &11/cv Bower;;, 228 AD2d 407, 408 [19961). 4 [* 5] . .. Acconlingly, that branch ofNuncr's molion s<:cking io dismiss plaintifrs negligence cause of action as asserted against Nutter is granted 11.nd sai<.I clain1 is distnis.!icd ru; ngainst Nutter. Nutter further argues thot plaintiff's fraud and fraudulent inducc;ment claims should al:lo be dismiSK<I os a.<scncd against Nuner since she bas failed 10 state what acts or representations Nuner rrutde. ro plaintiff constitutini; the alleged fr~ud and fraudulent induoemcnl in sufficiclll detail 11$ required by CPLK 3016 (b). Moreover, Nuner argue• that there·~ sufficienl <loc- mcntary e\•idt."JIC-e to refute plaintifrs allegations as assen:ed aaainst u Nutter. A molion pursuant to CPl.R 3211 (•XI) to dismiu a complaint based on documentary evidence "may be appropriately JVanled only where lhedocumentary evidence utterly rcruces plaintiff's factual al lcgutions. conclusively establishing u defense as a matter ofla\v" (GQ.,·hen v Mutunl life ft1'. Co. o/N. Y.. 98 NY2d 314, 326 f2002j; see Leonv Martine. 81NY2d83, ~8 ( 1994); Long v Allen ,f,l,fE Transp. Corp.• 43 AD3d 1114 12007]; SheridlJll v To...-n of Orangetown, 21AD3d365 [2005J: Scadura v Rohillord, 256 AD2d 567 [ 1998]). ··To properly plencl a cause of acciori to recover damages for ftsud, the plaintifi' niust allege that (I) the defc.nd<tnt made a false representation .of fact, (2) the defendant bad know!edgcofm,, falsity. (3) tbe misrqlrC$cutatioo '""'made in order to induce tlicplaintifl's reliance, (4) there wasju.<tifiablc reliance on the part ofthe plaintiff, and (S)thc plointi!Twas injured by lhe rcliunce" (Pace v RaLtman & Assuc., Es</.t., U P, 95 A03d 1185, I J88· I J 89 5 _ ....... [* 6] [2012]). Further, a cause of action sounding in fraud mu<t be pied witb sufficient particularity "lo pennit a reasonable inference of lhc alleged miscc>nduct" (Pace v Ralsm11n &. Assoc., &qs.. UP, 9S ADJd 1185, 1189 [2012];sualroCPLR3016 (b]). CPU~ 3016(b)r<quil'<S th.at ,.the circumstances of the fraud musl be ~ta.Led in tlelail, including specific dates and items" (Moore v Liberty Power Corp., l lC, 72 AD3d 66-0, 66 I [20 10]). Finally "[t)he mere fact that me exp<:ctations of the panics were ftus1n1tcd is an insufficient i:roun<S upon whic:b to pn:dicate a claim of fraud" (Tutak v Tuialc, 123 AD2<17SR (1986]). In opp<>sition to Nutter's mouoo. plaintiff contends that she and her husband had requested that defendants Thiessen and Lcxing1on ancmpt to help them obtain financing in order to rcfml.lDce their existing mortgage~ but insread a l"CV\.TSe mongagc w~ ubtained for he.r husband orily. She contends that tJ1e conscqu~nc:e.( of the n:movaJ of her name from lhc deed 1 the suhjc.ct premises. nnd the procurement of n reve.rse mongul{c solely in her 0 husband's no.me. was never explained to her or he< husbo.nd. Plaintiff further claims that the: signarurcs on u w py of a Certificate of Counseling explaining the consequences pwponing ' IA>be the signatur of her and her husband are forgerie~. AdditionaJly. plalntilI 1r1aintains es that Nuut:r. aeting through its 33cnt at lbc- closing. fai1ed to inform her lhat rcmovi.Jl,g he:r name 1Tom the deed and subsequently adding it back after !he rcvc~ mortgage was r<corded, made her right< subject to the reverse mortgage und Ue payment of it. She claims 1 that she believed Lhat the rcvcnc mortgage \vould no1 Occorne due and J)a)'Ahle until all.er citber her O< her busbwid's dea!h, which ever came later. 6 [* 7] - Jn reply, Nuner presents various documents in suppon of iIS~ motion co dismiss lhe fraud and fraudult-nt inducement claims. Nutlcr duough at1 affidnvi1of its Vice President P•ul Mad.•on, submits various document< signed by plain1irr' which dcmonstrato that •lie was given counseling regarding the implications or the reverse mongagc. Theoc docum<"ll<S • signed by plaintiff, as attorney in fact, for her husband Gerard Cadet, include: a Certificate or HECM (Home l::quity Conversion M0rtgagc) Counseling from Springboard Non Profit Consumer Credit Management Inc., dated May I 8, 2009;AcknowJedgmcntofRe<:eip~ dated JuJy t, 2009 (which. acknowledges the receipt of various documents including a notie<: to applicants for reverse m<>rtgagc loans, reverse mongage coonseling, liSt ofcounselors in Ille area and a ooun~ling StalCment); Coun<cling Statement, signed by plaintiffon July I. 2009 I in '''hi(.h she sm1es lha1: I hnve rc•d lhcoc documents thoroughly and completely, r including the Statement that advises me of the impol'tAOce of obtaining indcpi:ndcnt. counseling and information oo tc'\rttSC mortgages before cnkring into a reverse mortgage loan .. On 1 or about 5/18/09 (date), I (we) obtained independent counseling on reverse mongage loons fmm Bentri' Cortez(counselor). who explained the benefits, costs, tenns and other features of I diffcrenl types of r~·ersc mooga,gc loans to me (us). I Thi: cou11 notes thut the siwiaturc purporti1l{t to be (hat of pto.lntiff on the doC.t~mcnl.$ submitted by Nuttci match the sitoature of plaio.tifT on bcr affida,·lL in opposition to ihi: insu1nt motion. 2 7 I 1..·:i. [* 8] -·,.;l'lailltiffalso sisncd a Waiver of Counseling Affidavit which pertinently states that she read the materials described above (which included Notice tO Applicant< for Reverse Mongage Loans; 'l\vo-page document onRcv~rscM011gage Counseling; List ofCounselors in my area (if available; Siat=t tu be signed by opplicant(s) that J (we) ha>i: obtained counseling; Affidavit to be signed by applicant (s) that I (we) have chosen not tn nbtain c.ounscling; Third ·PMIY dcsignntion r(1rrr1). Additionally, Nutter >ubmits documents signed by plaintiffeoritled ·'Jmponant N0tice to Rcvc111<: Mortgage I .nan Applicant" and ··Reverse Mortgage Advisor Disclnsurc." Jn tile lancr document plaintiff indicalcd that about lhC. U11DSaction. ~he consulted \Vlth hc..-r daughter, Elise Beaubrun, Finally, plaintiff signed a docwneot entitled "Home Equity ConvcB,ion Mongage Oi$closure lmpon.:int TcmtS." This document includes a statement which States ·'[w)c can tenninate your H!ZCM and immodiately require payment of the ~.,,,;re OUtStanding balance in one P'J}mcnt if: All of the Borro\\'CJ'S have died." In the instant case, the court finds that plaintifl~ has failed lo plead 11 cause of action sound.in.& in fTaud '"'ilh sufficicnl particularity as to Nuner. She fa!ls to dcmon~te \Vhal false staicmcnts \\'t.."'IC made b)· Nutter to induce her ro t'nta into the revcnc: mortgage as attorney in fact for her husband (see Orchid Co11s1r. Corp. v Gollberter, 89 Al>3d 708, 710 [2011]: Moor•, 12 AD3d at 661)). Morcu>er. the documeotaiy Nuu~ c'~d.,..cc submitled by ttt\Jtcs pls:intifrs alh:gation:s that Nutttr failed to explain the implications of the reverse mortgage or in anyway fraudulently induced her lo enter in to this transaction .. 8 [* 9] --· ~ Plaintifr s amended complaint docs not include any allegation that she, or her hu.•band, cvcT spQkc with any Nuuc:r employee 41 all. The ...cord reveals that plaintiff signed numerous documcnis attcstina to the fact lhat she had read the documents throughly and that she had di<cusscd the implications and alternatives oflhc reverse mortgage; that she was made awan: of the in1ponancc of obtaining independent cou1 lscling and that she cbo!-\e not to do so and cbo>• no< to consult with an anomcy. Aceonlingly. that branch ofNul,., motion seeking to dismiss plainti ff's frllud and fraudulent inducement claims is granted. Conc!Yz~jon N1.11ter,s motio::i tu distniss plaintifrs claims as asserted against Nuner is grartted in it~ entirety und 53.id claims arc hereby dismissed as against Nutter. The foregoing constitutes the decision and order or lhe coun. EN TE R, J. s. c. HON. OAVIO L SCHMIDT 9

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