Chicago Ins. Tit. Co. v Brookwood Tit. Agency LLC

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Chicago Ins. Tit. Co. v Brookwood Tit. Agency LLC 2018 NY Slip Op 32187(U) August 24, 2018 Supreme Court, Kings County Docket Number: 507480/18 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. --·ricr.~-- [*[FILED: 1] KINGS COUNTY CLERK 09/07/2018 12:15 ~YSCEF.DOC. INDEX NO. 507480/2018 P~ RECEIVED NYSCEF: 09/07/2018 NO. 23 f(i}/"' :..:s l'"-1·~uu:"'7· ii/ '" ILc::o' LL£1' If,,.""' SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL PART 8 ,, 1 . c1 ... 7 201Bsc-,.... .. ., Al! 7: 43 ------------------------------------------x CHICAGO INSURANCE TITLE COMPANY, Plaintiff, r., Decision and order - against - Index No. 507480/18 BROOKWOOD TITLE AGENCY LLC, & MENDEL ZILBERBERG, Defendants, August 24, 2018 -------------~----------------------------x PRESENT: HON. LEON RUCHELSMAN The defendants have moved seeking to dismiss the complaint pursuant motion. After CPLR to The §3211. plaintiff has opposed the Papers were submitted by the parties and arguments held. reviewing all the arguments this court now makes the following determination. The plaintiff, against the issuing agent alleged personal allegations Tischler County. a title insurance company brought an action defendant and are owned Brookwood defendant guaranty. as Mendel The follows: property On January 3, Agency 2003 at an a based which 4316 Esther's LLC, Zilberberg facts In located 2004, Title policy upon support individual, 17th Avenue an these Esther in Kings. sister Jeanette Tischler, the guardian ad li tern for Esther deeded the property to their brother Harold obtained a and Harold Tischler. granted 'Approved'] the a lender, mortgage Approved in the Funding property. loan Corp., Title for $650, 000 [hereinafter insurance was .':.,· 1 of 6 &<* .~~- ~,, ,. [*[FILED: 2] KINGS COUNTY CLERK 09/07/2018 12:15 P~ INDEX NO. 507480/2018 NYSCEF.DOC. NO. 23 RECEIVED NYSCEF: 09/07/2018 obtained from Brookwood underwritten by the plaintiff herein insuring the mortgage. On November 22, 2011 the Supreme Court of Kings County issued an order cancelling the mortgage and voiding the conveyance Esther. Upon satisfied its of the the property and cancellation obligations of restoring the the mortgage to Approved and property the tendered to plaintiff the policy limits to Approved. The plaintiff instituted this lawsuit alleging three causes of action. the First that Brookwood breached its duty, plaintiff, authority Harold. by to failing transfer Second, the to discover the deed complaint that of Jeanette the alleges as agent of had property an action no to against Zilberberg for breach of a personal guaranty and lastly against both defendants seeking indemnification. The defendants complaint. First, between parties are time the barred. have terminated Moreover, the breach of statute 2006. of seeking in the 2010 thus defendants to dismiss the contract, since seeks these assert allegations that in to even the dismiss if valid alleged the is barred by the breach guaranty occurred claim on 2 ;·r '• ( any \ ... ; limitations Zilberberg moved the defendants argue the agency relationship \ event now 2 of 6 in the [*[FILED: 3] KINGS COUNTY CLERK 09/07/2018 12:15 INDEX NO. 507480/2018 P~ NYSCEF. DOC. NO. 23 RECEIVED NYSCEF: 09/07/2018 grounds no such guarantee exists. Lastly, the defendants seek to dismiss the indemnification claims. Conclusions of Law It is well settled that upon a motion to dismiss the court must determine, true, accepting allegations of the complaint as whether the plaintiff can succeed upon any reasonable view of those facts Dept., are the (Davids v. 2018]). deemed Further, true LLC, 14 AD3d 479, Pursuant all and all favor of the plaintiff State, 159 AD3d 987, the allegations reasonable (Dunleavy v. 789 NYS2d 164 to CPLR §231 (2) §203 (a) cause which of means action have v. Nelson, the all statute of NY2d drawn Moreover, the so 169, limitations in for facts that (see, 501 necessary the a the statute of cause of action accrues of occurred 67 be complaint Hilton Hall Apartments Co., entitled to obtain relief in court" Company the [2d [2d Dept., 2005]). run when a "when in inferences may breach of contract claim is six years. limitations begins to 74 NYS3d 288 party ( CPLR to the would be Aetna Life & Casualty NYS2d 313 [1986]). It is well settled that a breach of contract cause of action commences . -~ when the breach 5 99 breach occurs even (Ely-Cruikshank Co., NYS2d 501 [ 19 93] ) . if v. While the party is unaware Bank of Montreal, this 3 '; . ~~ i; .• 3 of 6 rule has been 81 of NY2d the 399, described as [*[FILED: 4] KINGS COUNTY CLERK 09/07/2018 12:15 P~ INDEX NO. 507480/2018 NYSCEF. DOC. NO. 23 RECEIVED NYSCEF: 09/07/2018 "harsh in result" 971 F.Supp nevertheless, of other argued (Pittson Co., Sedgwick James [District New of of New York Jersey 1997]), New York does not subscribe to the discovery rule states this 915 v. (id). very Indeed, the position, dissent namely in that Ely-Cruickshank the statute of limitations should be extended in cases where the breach and the harm do not occur at the same time. seemed to Ryan Ready NYS2d 627 argument ability espouse such a Mixed Concrete [2d Dept., that to 1966]) the older cases that position cited by the Corp., v. Coons, 25 dissent AD2d (see, 530, 267 cannot control this litigation. The Ely-Cruickshank commence Further, (supra) lawsuit was only controls where but where, known not the as here, the knowledge did not even exist is "a distinction without a difference, in light of the clear holdings of the Court of Appeals" (T & N PLC v. Fred S. James & Co., of New York Inc., 29 F3d 57 [2d Cir. instructed Hotel 1994]). courts Associates Dept. , 2 0 0 4] ) . not v. Thus, to The Appellate follow Shurkin, 12 Division Ryan Ready AD3d 359, likewise (see, 786 St. NYS2d has George 56 [2d the breach of contract claim is no longer viable and consequently the motion seeking to dismiss the first cause of action is granted. Concerning the motion seeking to dismiss the guaranty cause of action, the defendant Zilberberg asserts the language of the 4 4 of 6 _ _ _, _ , , , _.....;w-...... 111·· ·····!.:· [*[FILED: 5] KINGS COUNTY CLERK 09/07/2018 12:15 NYSCE~ P~ INDEX NO. 507480/2018 DOC. NO. 23 RECEIVED NYSCEF: 09/07/2018 .f. . guaranty never contemplated harm alleged here. indemnification The defendant notes for the specific the guaranty serves to "guarantee the full and faithful performance of the obligations of Agent under agree to fully delinquent accounts argues the ... contract" by that the indemnify ... from any and all remittances of and Agent" its and (see, very any escrow Personal terms the defendant loss resulting shortage Guaranty) . guaranty "hereby in the Thus, only from escrow defendant indemnifies for delinquent remittances or escrow shortages, both not relevant in this case, and that indemnification is unavailable for the claim sought here. any However, discovery, indemnification at this stage of the litigation, the as guaranty a could guaranty for be read the full to and before include faithful performance of the obligations and in addition indemnification I I t. t tl ·. ·. for two other issues, namely delinquent remittances and escrow shortages. While is contain the language implied by interpret the a it express guaranty does not follow. of true that indemnification, guaranty regarding Thus, the first such itself. clause if not language may be Indeed, performance does how else to indemnification there are factual issues concerning the scope of the indemnification clause and consequently the motion I seeking to dismiss the second cause of action is denied. 5. .. ,.,~., ,··.. .. ;:' 5 of 6 1 ~~~~DEX [*[FILED: 6] KINGS COUNTY CLERK 09/07/2018 12: 15 PM] ~Y$CEF.DOC. NO. 23 Likewise, the motion seeking to dismiss the third cause of action is denied as well. in contrast accrues York, NO. 507480/2018---. RECEIVED NYSCEF: 09/07/2018 when 50 to the the NY2d The indemnification cause of action, breach loss 211, is 428 . of contract incurred NYS2d 623 cause of action, (McDermott v. City [1980]). only of New Therefore, by definition the indemnification is distinct from any other claims including the breach of contract stage of the thus, the litigation the motion seeking claim. Consequently, at this indemnification claim is valid and to dismiss that claim is denied as well. So ordered. ENTER: •. <,•' L'-'. - DATED: August 24, 2018 Brooklyn NY Hon. Leon Ruchelsman JSC (i) . - ·~ :~Jg 1-c ri1::.: .. ,"::f '~ O:;! "'' r- ·~ 6 6 of 6 .,....,.. • ... ,--....h.... · ___.f.......~. ___..._ -~

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