Hinnant v Carrington Mtge. Servs., LLC.

[*1] Hinnant v Carrington Mtge. Servs., LLC. 2017 NY Slip Op 50884(U) Decided on July 6, 2017 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 6, 2017
Supreme Court, Kings County

Leatrice Hinnant, DESHAWN HINNANT, Plaintiffs,

against

Carrington Mortgage Services, LLC., EVERBANK; ROY PEDERSON; AND JARED BOOR, Defendants.



6294/16



Pro Se Plaintiffs

Leatrice Hinnant

466 MacDonough Street

Brooklyn, NY 11233

Deshawn Hinnant

466 MacDonough Street

Brooklyn, NY 11233

Attorneys for Defendant

Knuckles, Komosinski & Manfro, LLP

John E. Brigandi, Esq.

50 Tice Boulevard, Suite 183

Woodcliff Lake, New Jersey 07677 (201) 391-0370

Abigail Shvartsman, Esq.

Law Secretary to the Hon. F. Rivera

360 Adams Street

Brooklyn, NY 11201

347-296-1524
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint motion of the defendants Carrington Mortgage Services, LLC., Everbank, Roy Pederson, and Jared Boor (hereinafter jointly the defendants) filed on March 31, 2017, under motion sequence number one, for an order pursuant CPLR 3211(a) (1) and (a) (7) to dismiss the complaint.

Notice of Motion

Affirmation in support

Exhibit A

Affidavit in Opposition

Exhibit A-B

Reply Affirmation

Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of the plaintiffs Leatrice Hinnant and DeShawn Hinnant (hereinafter jointly the Hinnants or the plaintiffs) filed on March 31, 2017, under motion sequence number two, for an order (1) precluding the defendants from "asserting a late answer to the plaintiffs' verified complaint due to their willful failure to interpose, serve and file an answer after being duly timely served by personal delivery of this instant summons and verified complaint; (2) scheduling a hearing for sanctions pursuant to NYCRR 130-1.1(a) and (c)".[FN1]

Notice of Motion

Joint affidavit in support

Exhibits A-E

Affidavit in Opposition

Exhibit A-F

BACKGROUND

On November 4, 2016, plaintiffs commenced the instant action for damages by filing a summons and complaint with the Kings County Clerk's Office. On December 8, 2016, the defendants filed a Notice of Removal to Federal Court. On February 10, 2017 the matter was remanded to Supreme Court.

The verified complaint consists of thirty-six numbered paragraphs reciting various statements and factual allegations in support of four denominated causes of action. The first cause of action is entitled "[a]ppraisal report not used to calculate subject mortgage principal value." The second cause of action is entitled "[u]ndocumented mortgage assignments." The [*2]third cause of action is entitled "[n]otary fraud and false settlement agent." The fourth cause of action is entitled "[u]nlawful changes to consolidated documents and other anomalies".

Plaintiffs' verified complaint alleges in pertinent part, that on July 3, 2014, they executed and delivered a note in favor of Carrington, in the amount of $712,500.00. On the same date, plaintiffs executed and delivered a mortgage in favor of Carrington on certain real property located at 466 MacDonough Street in Kings County as security for the amounts due under the subject note.

LAW AND APPLICATION

The Defendants' CPLR 3211 motion

CPLR 3013 provides that "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." Under this section, "[a] complaint is insufficient if based solely on conclusory statements, unsupported by factual allegations" (Melito v Interboro—Mutual Indem. Ins. Co., 73 AD2d 819, 820 [4th Dept1979]).

CPLR 3014 provides that "[e]very pleading shall consist of plain and concise statements in consecutively numbered paragraphs." It further provides that "[e]ach paragraph shall contain, as far as practicable, a single allegation." Liberal construction "cannot be used as a substitute for matters of substance ... nor may conclusory statements of law be utilized to supply material facts by inference" (Didier v Macfadden Publs., 299 NY 49, 53 [1949]).

In considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (E & D Grp., LLC v Vialet, 134 AD3d 981, 982 [2nd Dept 2015][internal citations omitted]). Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss (Travelsavers Enterprises, Inc. v Analog Analytics, Inc., 149 AD3d 1003 [2nd Dept 2017]).

A court is . . . permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211 (a) (7) (E & D Grp., LLC, 134 AD3d 981 citing Sokol v Leader, 74 AD3d 1180,1181 [2nd Dept 2010] ; see CPLR 3211 [c]; Mawere v Landau, 130 AD3d 986, 988 [2nd Dept 2015]). "However, on a motion made pursuant to CPLR 3211 (a) (7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party . . . and a plaintiff will not be penalized because he [or she] has not made an evidentiary showing in support of his [or her] complaint" (Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]; see Nonnon v City of New York, 9 NY3d 825, 827 [2007]).

"When evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion has not been converted to one for summary judgment, the criterion is whether the [plaintiff] has a cause of action, not whether he [or she] has stated one, and, unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate" (E & D Grp., LLC 134 AD3d 981 citing Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Mawere, 130 AD3d at 988; Nasca v Sgro, 130 AD3d 588, 589 [2nd Dept 2015]; Sokol, 74 AD3d at 1181; E & D Grp., LLC, 134 AD3d at 982). Rather, a court [*3]must determine only whether the facts as alleged fit within any cognizable legal theory (Id.).

The defendants have moved for dismissal of the complaint pursuant to CPLR 3211 (a) (10 and (7). As a preliminary matter it is essential to determine if the complaint states a cause of action. The defendants have moved to dismiss plaintiffs' complaint, pursuant to CPLR 3211 (a) (7), on the basis that the complaint fails to state a cause of action. Thus, the Court must ascertain, first, whether there are factual allegations which give the defendants and the Court notice of the transactions or occurrences intended to be proved, and, second, whether those factual allegations allege any cognizable cause of action.

The complaint does contain certain factual allegations. It alleges that the plaintiffs executed a note secured by a mortgage on certain real property. It also alleges the place of residence of all defendants, the corporate status and business residence of the business entities and the relationship of the individual defendants to those entities. The rest of the complaint does not contain allegations of fact regarding any transactions or occurrences.For example, paragraph twenty of the complaint states:

[H]owever, after being unable to defend his actions in a civil action by the Plaintiffs for fraud against hin, Defendant LEAVITT, elected to inject Defendant PEDERSEN as his stooge to claim that he, defendant PEDERSEN was the individual with whom the Plaintiffs met with to conduct the subject real estate closing.

Paragraph thirty-six of the complaint states:

In conclusion, this instant action is imperative to resolve the issues raised by the Plaintiffs to address the fact that the instant mortgage in essence may be deemed a nullity due to material defects in the initial appraisal. This is compounded by the fact that these acts of fraud and improprieties have not ceased and are evident in other areas of the plaintiff's mortgage relationship with defendant CARRINGTON. In addition, there have been countless acts of treachery and dastardly intent on the parts of the Defendants to remove them from accountability.

Similar to these two paragraphs, the complaint contains many incomplete phrases, unclear sentences, ad hominem attacks and conclusory statements of fraud. In sum, the complaint fails to plead sufficient facts to support any cognizable cause of action recognized in law against the defendants. The jointly subscribed affidavit submitted by the plaintiffs in opposition to the motion also contained no coherent or comprehensible factual allegations. It did not remedy the pleading deficiencies of the complaint (see generally Pike v New York Life Ins. Co., 72 AD3d 1043, 1049 [2nd Dept 2010]).

The defendants have strained to read meaning into plaintiffs' complaint as one alleging damages due to fraud. The defendants have addressed the requisite elements of causes of action for fraud. The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages (Introna v Huntington Learning Ctrs., Inc., 78 AD3d 896, 898 [2nd Dept 2010]; see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). All of the elements of a fraud claim must be supported by factual allegations containing the details constituting the wrong in order to satisfy the pleading [*4]requirements of CPLR 3016 (b) (Cohen v Houseconnect Realty Corp., 289 AD2d 277, 278 [2nd Dept 2001]; see JP Morgan Chase Bank, N.A. v Hall, 122 AD3d 576, 579 [2nd Dept, 2014]; House of Spices [India], Inc. v SMJ Servs., Inc., 103 AD3d 848, 850 [2nd Dept 2013]). Here, the complaint consists of conclusory allegations regarding signatures on closing documents and calculations of monthly mortgage payments. The complaint fails to allege fraud with the requisite specificity (GFRE, Inc. v U.S. Bank, N.A., 130 AD3d 569 [2nd Dept 2015]).

While, as discussed above, the court must liberally construe factual allegations and will not dismiss a complaint simply because of poor draftsmanship, here, the court cannot strain to give meaning to a pleading which generally fails to state any cognizable claim against the defendants (see CPLR 3013). The complaint does not state any cognizable claim in law or in equity and is dismissed pursuant to CPLR 3211(a) (7) (see Heffez v L & G General Construction, 56 AD3d 526 [2nd Dept 2008]; Simmons v Edelstein, 32 AD3d 464 at 465 [2nd Dept 2008]). Inasmuch as the complaint is dismissed pursuant to CPLR 3211 (a) (7) there is no need to determine if the complaint should be dismissed pursuant to CPLR 3211 (a) (1).

Plaintiffs' Motion

The plaintiffs seek an order precluding the defendants from interposing a late answer to the verified complaint and for an order scheduling a hearing for sanctions pursuant to NYCRR 130-1.1 (a) and (c)[FN2] .

The procedural history of this matter is discussed supra. The defendants elected to move to dismiss the complaint pre-answer. The Court recognizes that a defendant may move to interpose a late answer pursuant to CPLR 3012. A party may also move for leave to "extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default" (CPLR 3012). However, in this instance the defendants are not seeking to interpose a late answer. Rather the defendants seek to dismiss the complaint pursuant to CPLR 3211 (a). The CPLR does not recognize a right to prohibit the defendants from asking to interpose a late answer. Accordingly, the motion seeking to preclude the defendants from interposing a late answer is denied.

Plaintiffs also seek to schedule a hearing for sanctions against the defendants' counsel Mr. John Brigandi, Esq. (hereinafter Brigandi) for his "acts of diversion and unnecessary filings and attempt to remove this action to Federal Court, in futile efforts to circumvent the rule of law, suppress facts, delay the conclusion of this instant action and will negligence to timely assert proper defenses for his clients."[FN3]

The court rule set forth in 22 NYCRR 130-1.1, which is intended to limit frivolous and harassing behavior, authorizes a court, in its discretion, to award a party in a civil action reasonable attorney's fees resulting from frivolous conduct (Marrero v NY City Transit Auth., 150 AD3d 1097 [2nd Dept 2017] citing Matter of Miller v Miller, 96 AD3d 943, 944 [2nd Dept 2012]). Conduct is frivolous if, inter alia, it is completely without merit in law or asserts material factual statements that are false (Marrero, 150 AD3d 1097 citing 22 NYCRR 130-[*5]1.1[c][1], [3]; Matter of Ernestine R., 61 AD3d 874, 876 [2nd Dept 2009]). In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party (Marrero,, 150 AD3d 1097).

In the instant action, the plaintiffs do not allege any action on behalf of Brigandi that could be recognized as frivolous or harassing behavior.

CONCLUSION

The joint motion of Carrington Mortgage Services, LLC.; Everbank; Roy Pederson; and Jared Boor for an order dismissing the complaint pursuant CPLR 3211(a)(7) is granted and the complaint is dismissed.

The joint motion of Carrington Mortgage Services, LLC.; Everbank; Roy Pederson; and Jared Boor for an order dismissing the complaint pursuant CPLR 3211 (a)(1) is rendered academic.

The joint motion of Leatrice Hinnant and DeShawn Hinnant for an order precluding the defendants from interposing a late answer to the plaintiffs' verified complaint is denied.

The joint motion of Leatrice Hinnant and DeShawn Hinnant for an order to schedule a hearing for sanctions pursuant to NYCRR 130-1.1(a) and (c) is denied.

The foregoing constitutes the decision and order of this Court.

Enter:

HONORABLE FRANCOIS A. RIVERA

J.S.C. Footnotes

Footnote 1:The court used the verbatim text contained in plaintiffs' notice of motion.

Footnote 2:The Court recognizes the relief requested as for preclusion and for sanctions.

Footnote 3:The Court quotes plaintiffs' language verbatim.