Leak v RBI Assoc., Ltd

[*1] Leak v RBI Assoc., Ltd 2020 NY Slip Op 50072(U) Decided on January 14, 2020 Supreme Court, Kings County Fisher, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 14, 2020
Supreme Court, Kings County

Ernest Leak, Plaintiff,

against

RBI Associates, Ltd, d/b/a RBI Credit Bureau d/b/a RBI Associates, Inc., Grover & Fensterstock, PC, Roger Boffardi, Rhoda Pacis and Consumer Management Services, Inc., Amalgamated Bank & Champion Mortgage, Defendants.



7861/2011



Attorney for Plaintiff

Jacqueline McMickens, Esq.,

Jacqueline McMickens & Associates, PLLC

26 Court Street, Suite 1600

Brooklyn, New York 11242

Attorneys for Defendant Grover & Fensterstock, P.C.

Simon Landsberg, Esq.

Meredith D. Gray, Esq.

Grover & Fensterstock, P.C. (self-represented)

750 Third Avenue, Suite 900

New York, New York 10017

Attorneys for Defendant Amalgamated Bank

Aaron Weissberg, Esq.

Kristen D. Romano. Esq.

Wilson, Elser, Moskowitz, Edelmman & Dicker, LLP

1133 Westchester Avenue

White Plains, New York 10604 Attorneys for Defendant Champion Mortgage

David K. Fiveson, Esq.

Mark J. Krueger, Esq.

Butler, Fitzgerald, Fiveson & McCarthy, P.C

9 East 45th Street, 9th Floor

New York, New York 10017
Pamela L. Fisher, J.

The following papers numbered 1 to 24 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and Affidavits (Affirmations) Annexed 1-3, 4-6

Opposing Affidavits (Affirmations) 7, 8, 9-10, 11, 12

Reply Affidavits (Affirmations) 13, 14, 15, 16, 17

Additional Affidavits (Affirmations) 18, 19, 20, 21, 22, 23, 24

Upon the foregoing papers, defendant Grover & Fensterstock, P.C. (Grover & Fensterstock) moves, in motion (mot.) sequence (seq.) number 18, for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the amended complaint and the cross claims brought by Champion Mortgage (Champion) as against it. Defendant Amalgamated Bank (Amalgamated) moves, in mot. seq. number 19, for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the amended complaint and Champion's cross claims as against it.The motions by Grover & Fensterstock (mot. seq. number 18) and Amalgamated Bank (mot. seq. number 19) are granted, and the complaint and Champion's cross claims are dismissed as against them.

In this action plaintiff Ernest Leak alleges causes of action primarily premised on negligence arising out of defendants' actions regarding a loan fraudulently obtained by nonparty Salvatore Lauria in plaintiff's name. According to plaintiff's deposition testimony and the amended verified complaint, plaintiff, who was the owner of neighboring houses located at 212 and 214 Skillman Street in Brooklyn, contacted defendant Consumer Management Services, Inc., (Consumer) in the fall of 2010 about obtaining a reverse mortgage, but, upon learning how a reverse mortgage worked, decided he did not wish to obtain such a mortgage. Plaintiff alleged that, based on information obtained from Consumer, Lauria, who worked as a cold caller in an office operated by defendant RBI Associates, LTD, (RBI),[FN1] a mortgage broker, appeared at plaintiff's property and tried to interest plaintiff in obtaining a reverse mortgage. Plaintiff, however, declined to proceed with a reverse mortgage, but, after meeting Lauria several times, expressed an interest in refinancing the mortgage encumbering 212 Skillman Street. Believing that Lauria would assist him in such a refinancing, plaintiff gave Lauria his driver's license and Social Security card.

Rather than applying for a loan refinancing the mortgage on 212 Skillman Street, Lauria, through RBI, proceeded to use plaintiff's information to apply for a reverse mortgage loan from nonparty Live Well Financial, Inc., (Live Well) that would encumber 214 Skillman Street. Plaintiff specifically denied giving Lauria permission to apply for a reverse mortgage loan, and added that he had no interest in obtaining any loan with respect to 214 Skillman Street, which had no encumbrances on it other than liens relating to unpaid taxes and unpaid parking tickets. Live Well ultimately approved the reverse mortgage loan, and defendant Rhodora Pacis, who processed loans for RBI, and who handled the processing of the reverse mortgage loan at issue with Live Well, arranged for Grover & Fensterstock to act as Live Well's attorney and settlement agent for the loan closing.

The closing was scheduled for January 24, 2011, at RBI's offices, but was set at a time David Fensterstock, one of Grover & Fensterstock's partners, could not be present. Fensterstock, who asserted that he did not always attend closings for reverse mortgages because no funds are to be disbursed at closings for such loans, arranged for Rhodora Pacis, who was a notary, to witness the signatures at the closing. Plaintiff denied being present at the closing, but someone appeared at the closing with Lauria, and presented an original driver's license and an original Social Security card in plaintiff's name to Pacis and signed the reverse mortgage and note using plaintiff's name.[FN2] Based on the testimony of plaintiff, Pacis, and Fensterstock, Fensterstock had no actual contact with plaintiff, whether by telephone or personal contact. Although Pacis, at her deposition, was never specifically asked if she knew about Lauria's scheme, the entire tenor of Pacis' testimony makes clear that she did not know about Lauria's scheme, and was unaware that the person purporting to be Ernest Leak, with whom she spoke with by telephone during the loan application process and at the closing, was not the plaintiff.

Among other things, the loan closing instructions provided to Fensterstock by Live Well required that "[s]ettlement proceeds may not be wired to the borrower if the borrower's bank account includes the name of any individuals who are not borrowers. In these situations, the proceeds must be mailed in the form of a check." In his deposition testimony, Fensterstock asserted that, at or around the time of the closing, Pacis or another RBI employee provided him with a void check from Amalgamated in the name of "No Leak Plumbing." Given the closing instructions, Fensterstock informed Pacis or another RBI employee, that the borrower was required to provide a void check that was solely in his name. Fensterstock thereafter received an Amalgamated check from Pacis, or the other RBI employee, that had no account name on it along with a letter purportedly signed by Ralph Scherillo, an Amalgamated assistant vice-president, indicating that Ernest Leak had a personal account with Amalgamated and was an [*2]authorized signatory on the account. Upon receiving this check and letter, Fensterstock asserted that he called Amalgamated and spoke with Ralph Scherillo, who told him that Ernest Leak was the sole signatory on the account. Based on these representations, Fensterstock, after paying the closing fees and costs paying off the liens relating to the parking tickets and unpaid taxes, wired the remainder of the loan proceeds into the account that purportedly belonged to Ernest Leak. Lauria, however, was also a signatory on the account, and he ended up transferring the loan proceeds out of the account for his own use.

Plaintiff, however, has specifically denied that he ever had an account with Amalgamated. Scherillo, in his own deposition testimony and affidavits, conceded that he set up the bank accounts at issue. These accounts were the "No Leak Plumbing" account that was opened solely by Lauria on January 25, 2011, the joint business account with both Lauria and the person claiming to be Ernest Leak as signatories that was opened on January 27, 2011, and a joint personal checking account with both Lauria and the person claiming to be Ernest Leak as signatories that was opened on January 31, 2011. Scherillo asserted that the person purporting to be Ernest Leak appeared in person at Amalgamated on both January 27, 2011 and January 31, 2011 and, on both of those days, presented an original driver's license and an original Social Security card in the name of Ernest Leak. Scherillo asserted that the imposter looked like the person shown on the driver's license photograph. Although Scherillo conceded that he drafted a letter indicating that Leak was a signatory on the business account, he denied drafting the letter relating to the personal account, and asserts that that letter appears to have been cut and pasted from the business account letter. Finally, in contrast to Fensterstock's testimony, Scherillo asserts that he did not receive a telephone call from Fensterstock prior to the fraud being discovered, and never told Fensterstock that Leak was the sole signatory on the Amalgamated personal checking account.

It is undisputed that Lauria's role in the scheme was discovered at some point in the spring of 2011. Further, it is undisputed that Lauria was thereafter indicted for crimes related to his scheme, and in pleading guilty to crimes related to the scheme, Lauria admitted that he did not have plaintiff's permission to apply for the loan, that he forged plaintiff's signatures on Live Well's mortgage application, that the signatures on the note are forged, and that he brought an imposter to the closing. In view of the forged documents and Lauria's overall scheme, the court that accepted Lauria's guilty plea issued an order dated December 6, 2012 (Walsh, J.) deeming Live Wells' mortgage a nullity to the extent that it created an encumbrance as against plaintiff's property at 214 Skillman Street. This order, however, was made without prejudice to Live Well (which was not a party to the criminal proceedings relating to the plea and the December 6, 2012 order) or its successors in interest seeking appropriate remedies at law or equity.

Plaintiff thereafter commenced this action against Live Well, RBI, Grover & Fensterstock, Roger Boffardi (RBI's principal), Pacis, and Consumer in April 2011. Given that Live Well at some point sold its interest in the note and mortgage and that the note and mortgage were ultimately assigned to Champion, plaintiff added Champion as a party defendant in his amended complaint that was filed in July 2013.[FN3] Because Live Well no longer had an interest in the note and mortgage, the court, in an order dated October 2, 2014 (Dabiri, J.), dismissed the [*3]action as against Live Well.

The court notes that in January 2014, Champion commenced a separate action (the Declaratory Action) in this court (Nationstar Mortgage LLC, d/b/a Champion Mortgage Company v Ernest Leak, index No. 881/14) seeking a declaratory judgment declaring that Live Wells' note and mortgage were valid liens against plaintiff's property at 214 Skillman Street, and directing the City Register to accept the filing of the note and mortgage as a lien against the property. At the time it commenced the Declaratory Action, Champion also filed a notice of pendency, which was thereafter renewed, as against 214 Skillman Street. It is undisputed that Champion and plaintiff, by way of a stipulation of settlement dated April 24, 2019, have resolved all claims as against each other in this action and in the Declaratory Action, and, as is relevant here, that Champion has agreed to cancel its notice of pendency and file a release of any claims based on the Live Well mortgage with the Office Of The City Register.

With respect to the portion of Grover & Fensterstock's motion addressed to the amended complaint, Grover & Fensterstock alleges that it did not owe a duty to plaintiff under the circumstances of this case. Grover & Fensterstock, which was acting as Live Well's attorney, did not owe plaintiff a duty in that role, since, "[i]n New York, a third party, without privity, cannot maintain a claim against an attorney in professional negligence, 'absent fraud, collusion, malicious acts or other special circumstances'" (Estate of Schneider v Finmann, 15 NY3d 306, 308-309 [2010], quoting Estate of Spivey v Pulley, 138 AD2d 563, 564 [2d Dept 1988]; Breen v Law Off. of Bruce A. Barket, P.C., 52 AD3d 635, 636 [2d Dept 2008]). As there is no evidence suggesting that Grover & Fensterstock was aware of or part of Lauria's fraudulent scheme, none of the exceptions to the privity requirement are applicable here (see Mauro v Countrywide Home Loans, Inc., 116 AD3d 930, 933 [2d Dept 2014]; Chemical Bank v Bowers, 228 AD2d 407, 408 [2d Dept 1996]; see also Hinnant v Carrington Mtge. Servs., LLC, 172 AD3d 827, 829 [2d Dept 2019]). Moreover, in view of the general rule that a lender, absent a special relationship with a borrower, does not owe a duty to verify the identity of an imposter who obtains a loan in a plaintiff's name (see Landino v Bank of Am., 52 AD3d 571, 574-575 [2d Dept 2008]; Beckford v Northeastern Mtge. Inv. Corp., 262 AD2d 436, 436 [2d Dept 1999]; Polzer v TRW, Inc., 256 AD2d 248, 248 [1st Dept 1998]; Banque Nationale de Paris v 1567 Broadway Ownership Assocs., 214 AD2d 359, 360 [1st Dept 1995]; see also Sullivan v MERS, Inc., 139 AD3d 419, 420 [1st Dept 2016]; Burger v Singh, 28 AD3d 695, 697-698 [2d Dept 2006]), there is no basis for imposing such a duty on Grover & Fensterstock based on its acting as Live Well's attorney (Chemical Bank v Bowers, 228 AD2d at 408).

Grover & Fensterstock, however, also acted as the settlement agent for Live Well. With respect to the disbursement of loan proceeds placed in its hands, a settlement agent acts as an escrow agent (see Mauro, 116 AD3d at 933; Cash v Titan Fin. Servs., Inc., 58 AD3d 785, 789 [2d Dept 2009]). "An escrow agent . . . becomes a trustee of anyone with a beneficial interest in the trust with the duty not to deliver the escrow to anyone except upon strict compliance with the conditions imposed. Thus, an escrow agent can be held liable for . . . breach of fiduciary duty as escrowee" (Takayama v Schaefer, 240 AD2d 21, 25 [1998] [internal quotation marks and [*4]citations omitted]).[FN4]

Applying this law to the facts, here, the evidentiary record in the context of this summary judgment motion demonstrates as a matter of law that it was Lauria who applied for the reverse mortgage loan from Live Well using plaintiff's information and that plaintiff had no personal connection with that mortgage and loan. Under such circumstances, it is Lauria and the imposter used by Lauria, who appeared at the closing and who assisted Lauria in the opening of the bank accounts with Amalgamated, who were the actual intended beneficiaries of the loan proceeds. While plaintiff's name and information was used by Lauria, plaintiff was a stranger to the transaction and cannot be deemed to have been the intended beneficiary of the loan proceeds (see M.E.W.N., Inc. v Village of Roslyn Estates, 78 AD2d 636, 637 [2d Dept 1980]; see also SFS Check, LLC v First Bank of Deleware, 774 F3d 351, 357-358 [6th Cir 2016] [rejecting an argument that the imposter's use of plaintiff's information to open a bank account made plaintiff a customer of the bank]; Iglesias v Pentagon Title & Escrow, LLC, 206 Md App 624, 659-660, 51 A3d 51, 71-72 [Ct Spec App 2012] [plaintiff whose name imposter used for loan and real estate transaction was not in privity or equivalent of contractual privity with settlement agent]; but see Maxfield v Martin, 217 Ariz 312, 314-315, 173 P3d 476, 478-479 [Ct App 2014] [finding that a settlement agent owed a duty of care to plaintiff's name that was used by imposter to obtain loan and mortgage against plaintiff's property]).[FN5]

Without any connection to plaintiff, Grover & Fensterstock had no special relationship with plaintiff that would impose a duty on it to exercise due care with respect to protecting plaintiff from an imposter. Indeed, it would be anomalous to find that Grover & Fensterstock owed such a duty in the face of the above noted case law finding that a lender itself owes no such duty under like circumstances (Iglesias, 206 Md App at 660, 51 A3d at 72; see Landino, 52 AD3d at 574-575; Beckford, 262 AD2d at 436; Polzer, 256 AD2d at 248; Banque Nationale de [*5]Paris, 214 AD2d at 360; see also Sullivan, 139 AD3d at 420; Burger, 28 AD3d at 697-698).[FN6] As Grover & Fensterstock has submitted evidentiary proof showing that it did not owe a duty to plaintiff arising out of plaintiff being the beneficiary of the funds being disbursed or owe a duty to plaintiff based on a special relationship, Grover & Fensterstock has demonstrated its prima facie entitlement to dismissal of any claim based on negligence or the violation of a fiduciary duty arising out of its role as settlement agent (see M.E.W.N., Inc., 78 AD2d at 637; Iglesias, 206 Md App at 659-660, 51 A3d at 71-72; see also Saul v Cahan, 153 AD3d 947, 949 [2d Dept 2017]; Palmetto Partners, L.P. v AJW Qualified Partners, LLC, 83 AD3d 804, 807 [2d Dept 2011]).[FN7]

To the extent that the amended complaint pleads additional causes of action against Grover & Fensterstock, absent a duty owed to plaintiff, absent evidence of fraud, and absent evidence that Grover & Fensterstock's actions at issue were consumer-oriented, or involved false advertising or fraudulent conduct for purposes of General Business Law §§ 349 and 350 and Executive Law § 63 (12) (see Disa Realty Inc. v Rao, 168 AD3d 1037, 1040 [2d Dept 2019]; Greene v Rachlin, 154 AD3d 814, 816 [2d Dept 2003]), Grover & Fensterstock has demonstrated its prima facie entitlement to dismissal of those remaining causes of action.[FN8] [*6]Plaintiff, in opposition, has failed to submit evidentiary proof demonstrating an issue of fact warranting denial of the motion.

Amalgamated has also demonstrated its prima facie entitlement to summary judgment. Generally, a bank does not owe a duty of care to a noncustomer to protect them from the torts of their customers (see Winkler v Battery Trading, Inc., 89 AD3d 1016, 1018 [2d Dept 2011]; Century Bus. Credit Corp. v North Fork Bank, 246 AD2d 395, 396 [1st Dept 1998]; Lerner v Fleet Bank, N.A., 459 F3d 273, 286 [2d Cir 2006]). New York cases have specifically found that, absent a special relationship, banks and lenders do not owe a duty to the persons whose identity has been used by an imposter to obtain credit cards and to obtain loans from a bank or lender (see Landino, 52 AD3d at 574-575; Beckford, 262 AD2d at 436; Polzer, 256 AD2d at 248; Banque Nationale de Paris, 214 AD2d at 360). Courts in other jurisdictions have likewise almost universally held that a bank, absent a special relationship, does not owe a duty to a plaintiff whose identity has been used by an imposter to set up a checking or savings account (see e.g. SFS Check, LLC, 774 F3d at 357-358; Promissor, Inc. v Branch Bank & Trust, 2008 WL 554951,*5 [U] [ND Ga 2008]; Brunson v Affinity Federal Credit Union, 199 NJ 381, 401-403, 972 A2d 1112, 1123-1125 [2009]; but see Patrick v Union State Bank, 681 So2d 1364, 1369-1371 [Ala 1996]).

Here, Amalgamated has demonstrated, prima facie, that it had no connection with plaintiff that would make out a special relationship and, absent such a relationship, it owed no duty to plaintiff in allowing the imposter to open the accounts in his name. In any event, through Scherillo's deposition testimony that he was presented with an original driver's license and Social Security card by the imposter, and that the imposter looked like the person in the photograph, Amalgamated has also demonstrated that there were no red flags that put it on notice of the identity theft (see Countrywide Home Loans, Inc. v United Gen. Tit. Ins. Co., 109 AD3d 953, 954 [2d Dept 2013]). For these reasons, and the reasons discussed with respect to Grover & Fensterstock relating to the claims based on the General Business Law and the Executive law, Amalgamated has demonstrated its prima facie entitlement to summary judgment dismissing the complaint. Plaintiff, in opposition, has failed to submit evidentiary proof demonstrating an issue of fact warranting denial of Amalgamated's motion.[FN9]

Both Grover & Fensterstock and Amalgamated are also entitled to summary judgment dismissing Champion's cross claims for contribution and indemnification against them. Having settled with plaintiff, Champion's claims for contribution are barred by General Obligations Law § 15-108.[FN10] Further, Champion cannot avoid dismissal of its contribution claims based on its [*7]assertion that plaintiff's claims against it are not tort claims, since some form of tort liability is a prerequisite for a contribution claim under CPLR 1401 (see Board of Educ. of Hudson City School Dist. v Sargent, Webster, Crenshaw & Folley, 71 NY2d 21, 27-28 [1987]).

Champion, however, is correct that General Obligations Law § 15-108 has no effect on its indemnification claims, and its settlement does not, in and of itself, bar its indemnity claims (see Cunha v City of New York, 12 NY3d 504, 509 [2009]). Nevertheless, the record here demonstrates that Champion could not have been held liable to plaintiff for negligence as Live Well, its predecessor in interest, did not owe a duty of care to plaintiff with respect to the fraudulent loan (Landino, 52 AD3d at 574-575; Beckford, 262 AD2d at 436; Polzer, 256 AD2d at 248; Banque Nationale de Paris, 214 AD2d at 360; see also Sullivan, 139 AD3d at 420; Burger, 28 AD3d at 697-698). Further, the other causes of action, including those seeking the release of the mortgage liens on the property, did not involve the payment of damages based on a duty owed to plaintiff. As such, Champion may not be found vicariously liable to plaintiff, and Champion has not been compelled to pay damages that ought to have been payed by Grover & Fensterstock or Amalgamated as is required to establish a common-law indemnification claim (see Raquet v Braun, 90 NY2d 177, 183 [1997]; Rosado v Proctor & Schwartz, 66 NY2d 21, 25-27 [1985]; State of New York v Stewart's Ice Cream Co., 64 NY2d 83, 88 [1984]). Absent the possibility of damages or liability owed to plaintiff by Champion, it is irrelevant whether Grover & Fensterstock and/or Amalgamated's actions relating to the loan may have violated a contractual or tort duty owed to Champion (see Smith v Hooker Chem. & Plastics Corp., 83 AD2d 199, 202 [4th Dept 1981]; Edwards v All Star Recovery Corp., 56 Misc 3d 1208 [A], 2017 NY Slip Op 50902, *8 [U] [Sup Ct, Kings County 2017]).

This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:While it is clear from the record that Lauria obtained customers for RBI's mortgage broker services, it is unclear whether Lauria was employed by RBI. Defendant Roger Boffardi was apparently the principal of RBI.

Footnote 2:The court notes that plaintiff alleges in the complaint that the signature on the reverse mortgage appears to state "Esnet Look." While one could possibly read the signature in such a manner, the court, upon its own examination of the signature, finds that the signature can be read as stating "Ernest Leak" and that the signature is not so obviously incorrect that Pacis should have questioned the bona fides of the signer based on the signature alone. Of note, plaintiff, in opposing the instant motions, does not rely on any argument based on the appearance of the signature and presents no evidence suggesting that Pacis should have been aware of the appearance of plaintiff's actual signature.

Footnote 3:The amended complaint also added Amalgamated as a party defendant.

Footnote 4:The court notes that, while the Appellate Division, Second Department affirmed the denial of Grover & Fensterstock's motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) (Leak v Live Well Fin., Inc, 145 AD3d 992, 993-994 [2d Dept 2016]), the decision is not binding as law of the case in the context of this summary judgment motion (see Borawski v Abulafia, 140 AD3d 817, 817-818 [2d Dept 2016]).

Footnote 5:Maxfield appears to be the only case holding that a settlement agent owes a duty to the person whose identity has been stolen. Decisions such as Countrywide Home Loans, Inc. v United Gen. Tit. Ins. Co. (109 AD3d 953 [2d Dept 2013]) and Home Loan Ctr., Inc. v Flanagan (2012 WL 1108132 [U] [ND Ill 2012]) are distinguishable because the courts in those decisions addressed the duty owed by the settlement agent to the lender who had issued the closing instructions and provided the funds to be disbursed, not the person whose identity had been stolen (Countrywide Home Loans, Inc. v United Gen. Tit. Ins. Co., 109 AD3d at 953-954; Home Loan Ctr., Inc., 2012 WL 1108132, *4-6; see also Guar. Residential Lending, Inc. v Int'l Mortg. Ctr., Inc., 305 F Supp2d 846, 865 [ND Ill 2004]).

Footnote 6:The court notes that Mauro and Cash are readily distinguishable in that in both of those cases the plaintiffs participated in the transactions at issue, were the intended beneficiary of the funds disbursed by the settlement agent, and there was direct contact between the plaintiffs and the settlement agents at the respective closings (Mauro, 116 AD3d at 932-933; Cash, 58 AD3d at 790, modifying 2007 WL 6853643, *6-7 [Sup Ct, Queens County 2007]).

Footnote 7:In any event, event, even if Grover & Fensterstock owed plaintiff a duty, it has demonstrated, prima facie, that it acted reasonably under the circumstances here. In this respect, Live Well's closing instructions set no requirements for identifying the plaintiff at the closing. While Grover & Fensterstock delegated to Pacis the responsibility to witness the signatures at the closing, Pacis' testimony that the imposter submitted plaintiff's original driver's license and Social Security card at the closing, coupled with Ralph Scherillo's testimony that the imposter used by Lauria looked like the photograph on the license, demonstrates, prima facie, that there were no red flags that would have put Grover & Fensterstock on notice with respect to identity theft (see Countrywide Home Loans, Inc., 109 AD3d at 954). The testimony of Fensterstock and that of Scherillo, however, presents factual issues as to whether Fensterstock adequately complied with Live Well's instructions regarding the number of signatories on the account to which funds were to be wired. Nevertheless, in wiring the money to the bank account at Amalgamated, Fensterstock undoubtedly complied with the instructions of the person who they reasonably believed was the beneficiary of the funds from Live Well. Plaintiff has submitted no evidence demonstrating an issue of fact in this respect.

Footnote 8:Given this resolution, the court has not addressed Amalgamated and Grover & Fensterstock's additional contention that Champion's settlement with plaintiff also warrants summary judgment in their favor. The court notes, however, that despite the fact that this argument was first raised in reply papers, plaintiff and Champion had an opportunity to address the issue in further opposition papers.

Footnote 9:The court notes that the copy of plaintiff's driver's license and the copy of the photograph of the imposter submitted with plaintiff's opposition papers are so unclear as to render it impossible to make any determination regarding the resemblance of the imposter to the photograph on the license based on based on a comparison of the copies presented by plaintiff.

Footnote 10:As Champion had an opportunity to respond to Grover & Fensterstock and Amalgamated's arguments regarding the impact of the settlement, this court may consider them despite the fact that they were raised for the first time in reply (see LNV Corp. v Sofer, 171 AD3d 1033, 1036 [2d Dept 2019]).