Stewart v Santander Consumer, USA, Inc.
Annotate this CaseDecided on October 3, 2013
Supreme Court, Kings County
Tiffany Stewart, Plaintiff,
against
Santander Consumer, USA, Inc., et al., Defendants.
3621/13
Plaintiff Attorney: David A. Shapiro, Esq., Zelenitz, , Shapiro & D'Agostino, P.C., 138-44 Wueens Blvd., Briarwood, NY 11435
Defendant Attorney: Casey D. Laffey, Esq., Pamela L. Schoenberg, Esq., Reed Smith, LLP, 599 Lexington Avenue, New York, NY 10022
David I. Schmidt, J.
Upon the foregoing papers, defendant Santander Consumer USA, Inc. (Santander) moves for an order, pursuant to CPLR 3211 (a)(1) and (a)(7), dismissing the complaint of plaintiff Tiffany Stewart with prejudice.
On July 27, 2012, plaintiff purchased a used vehicle from defendant TMD Motor [*2]Sports, Inc. (TMD) for the amount of $10,000.00. TMD had purchased the vehicle from defendant Desiree Skinner. During the time of Skinner's ownership, the vehicle was subject to a lien held by Santander, a car loan financing company. According to the complaint, TMD represented that there were no liens on the vehicle and presented plaintiff with correspondence from Santander, dated June 25, 2012, indicating that the account and/or lien on the vehicle had been satisfied. However, in January 2013, Santander repossessed the vehicle. In addition to a cause of action for fraud against TMD and Skinner, plaintiff asserts a cause of action against Santander based on the alleged wrongful repossession and a cause of action against all defendants for attorneys fees.
Santander moves to dismiss plaintiff's claims under CPLR 3211 (a)(1) based on a copy of an "abstract of title record" from the Department of Motor Vehicles (DMV). The title abstract, dated April 15, 2012 (several months following the repossession), indicates that Santander held an active lien on the vehicle as of said date. In opposition, plaintiff submits an affidavit wherein she avers that she dealt with an individual named Jason Barrocas at the TMD sales lot who presented her with a letter from Santander indicating that the lien was paid in full. In his own affidavit, Barrocas states that when he obtained the vehicle from previous owner Skinner, he was presented with the letter from Santander indicating that there was no lien on the vehicle. Barrocas further avers that he contacted Santander on two separate occasions to confirm that the lien was satisfied and that Santander advised him the vehicle was free and clear of the lien. In reply, Santander submits an affidavit from Mark Mooney, identified therein as a vice president of Santander, who explains that while Skinner remitted a check to bring the balance of her vehicle loan to zero, the payment was subsequently reversed due to insufficient funds in Skinner's checking account. Mooney asserts that Santander "inadvertently" marked Skinner's loan as "paid in full" prior to the reversal in Skinner's payment, and that the debt was never actually satisfied.
" A CPLR 3211(a)(1) motion to dismiss a complaint on the ground that a defense is founded on documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiff's allegations, conclusively establishing a defense as a matter of law'" (Rojas v Paine, 101 AD3d 843, 846 [2012], quoting Peter Williams Enters., Inc. v New York State Urban Dev. Corp., 90 AD3d 1007, 1008 [2011]). In order for evidence submitted under a CPLR 3211(a)(1) motion to qualify as "documentary evidence," it must be "unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996—997 [2010] [internal quotation marks omitted] ). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case" (Fontanetta v John Doe 1, 73 AD3d 78, 84—85 [2010]).
Vehicle and Traffic Law § 2108 (c) provides that "[a] certificate of title issued by the [DMV] commissioner is prima facie evidence of the facts appearing on it." Since the information is only prima facie evidence of the facts contained therein, such content may be rebutted (see Punis v Perales, 112 AD2d 236, 277-238 [1985]; Fitzpatrick v Bank of New York, 124 Misc 2d 732, 733 [1983]). Thus, "a certificate of title does not offer dispositive proof of the existence or absence of any lienholders"(Chrysler Financial Co., L.L.C. v Schlant, 243 BR 613, 618 [WDNY 2000]). Insofar as a certificate of title is not dispositive proof of whether a lien actually exists, the subject abstract of title cannot constitute evidence which conclusively disposes of plaintiff's claims against Santander for wrongful repossession of the vehicle. While Santander argues that the "paid in full" letter [*3]was issued prematurely or inadvertently, there is no documentary evidence submitted which conclusively establishes the insufficiency of Skinner's final payment or that the lien otherwise was not, in fact, paid in full. The copy of purported payment entries on Skinner's account, submitted in reply, is insufficient to constitute dispositive documentary evidence as its content cannot be deemed "undeniable" on its face.
As a result, Santander's motion to dismiss the complaint pursuant to CPLR 3211 (a)(1) is denied.
In determining whether a complaint is sufficient to withstand a motion pursuant to CPLR 3211 (a)(7), "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). The court must accept the facts alleged in the complaint to be true and determine only whether the facts alleged fit within any cognizable legal theory (see Dye v Catholic Med. Ctr. of Brooklyn & Queens, 273 AD2d 193 [2000]). Accepting plaintiffs' allegations as true, the court finds that she sufficiently states a claim against Santander for wrongful repossession of the vehicle. Accordingly, that part of Santander's motion to dismiss the wrongful possession claims pursuant to CPLR 3211 (a)(7) is denied.
However, that part of the motion seeking dismissal of plaintiff's third cause of action for an award of attorney fees is granted. Attorneys' fees are considered an incident of litigation and, unless authorized by statute, court rule or written agreement of the parties, are not recoverable (Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989]; Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5 [1986]). In the absence of an explicit statutory or contractual authority therefor, a right to attorneys' fees will not be inferred (Lawyers' Fund for Client Protection v Morgan Guar. Trust Co. of NY, 259 AD2d 598, 600 [1999]).
The foregoing constitutes the decision and order of the court.
E N T E R,
J. S. C.
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