Sammy v. Haupel

170 A.D.3d 1224

97 N.Y.S.3d 269

Vanessa SAMMY, Appellant,

v.Frank HAUPEL, et al., Respondents.

2016–09815

2016–10942

Index No. 700403/16

Supreme Court, Appellate Division, Second Department, New York.

Argued - December 11, 2018

March 27, 2019

Christopher Renfroe, Forest Hills, NY, for appellant.

Steinberg & Cavaliere, LLP, White Plains, N.Y. (Steven A. Coploff of counsel), for defendants-respondents Frank Haupel, Michael Schwarz, and DelBello Donnellan Weingarten Wise & Wiederkehr, LLP.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Patrick J. Lawless of counsel), respondent pro se and for respondents Thomas W. Hyland and Tina Zerilli.

JOHN M. LEVENTHAL, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for violations of Judiciary Law § 487, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Denis J. Butler, J.), entered August 16, 2016, and (2) an order of the same court entered September 22, 2016. The order entered August 16, 2016, insofar as appealed from, granted those branches of the motion of the defendants Thomas W. Hyland, Tina Zerilli, and Wilson Elser Moskowitz Edelman & Dicker, LLP, which were pursuant to CPLR 3211(a)(7) to dismiss the first, second, and fourth causes of action insofar as asserted against them. The order entered September 22, 2016, insofar as appealed from, granted those branches of the motion of the defendants Frank Haupel, Michael Schwarz, and DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, which were pursuant to CPLR 3211(a)(7) to dismiss the first, second, and fourth causes of action insofar as asserted against them.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

The events underlying this action relate to the plaintiff's purchase of real property in 2007. According to the plaintiff, Expedient Title, Inc. (hereinafter Expedient), as the authorized agent of First American Title Insurance Company (hereinafter First American), performed title closing services, including issuing title insurance to the plaintiff, for the plaintiff's purchase of the property. Ultimately, the plaintiff made a claim on that title insurance policy, the claim was denied, and the plaintiff commenced an action against Expedient and First American (hereinafter the claim denial action).

The plaintiff subsequently commenced this action against Thomas W. Hyland, Tina Zerilli, and Wilson Elser Moskowitz Edelman & Dicker, LLP (hereinafter collectively the Wilson Elser defendants), who had represented Expedient in the claim denial action, and against Frank Haupel, Michael Schwarz, and DelBello Donnellan Weingarten Wise & Wiederkehr, LLP (hereinafter collectively the DelBello defendants), who had represented First American in the claim denial action. The plaintiff alleged that through their representation of First American and Expedient, the defendants had (1) violated Judiciary Law § 487, (2) committed fraud, (3) filed a fraudulent instrument, (4) committed tortious interference with a contract, and (5) offered a false instrument for filing in the first degree.

The Wilson Elser defendants moved, and the DelBello defendants separately moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against each of them. In separate orders, the Supreme Court granted the Wilson Elser defendants' motion and the DelBello defendants' motion. The plaintiff appeals from so much of each order as granted those branches of the defendants' separate motions which were pursuant to CPLR 3211(a)(7) to dismiss the first, second, and fourth causes of action.

An attorney is liable under Judiciary Law § 487(1) if he or she "[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party." "A cause of action alleging a violation of Judiciary Law § 487 must be pleaded with specificity" ( Betz v. Blatt , 160 A.D.3d 696, 698, 74 N.Y.S.3d 75 ). " Judiciary Law § 487 focuses on the attorney's intent to deceive, not the deceit's success" ( id. at 699, 74 N.Y.S.3d 75 [internal quotation marks omitted] ).

Here, the plaintiff did not state a cause of action alleging violations of Judiciary Law § 487. The plaintiff failed to set forth "with specificity," either in her complaint or in her papers opposing the motions, how the defendants knew or should have known that she did not sign the release upon which they relied in asserting affirmative defenses on behalf of their clients in the claim denial action ( id. at 698, 74 N.Y.S.3d 75 ). Even if the plaintiff had sufficiently pleaded this allegation, she "failed to allege sufficient facts to establish that the[ ] defendants intended to deceive the court" or the plaintiff ( Klein v. Rieff , 135 A.D.3d 910, 912, 24 N.Y.S.3d 364 ; see Ticketmaster Corp. v. Lidsky , 245 A.D.2d 142, 143, 665 N.Y.S.2d 666 ; Thomas v. Chamberlain, D'Amanda, Oppenheimer & Greenfield , 115 A.D.2d 999, 999–1000, 497 N.Y.S.2d 561 ). The plaintiff's conclusory allegation that the defendants intended to deceive the court and the plaintiff in relying on the affirmative defense of release in the claim denial action was not sufficient to state a cause of action alleging a violation of Judiciary Law § 487 (see Betz v. Blatt , 160 A.D.3d at 698, 74 N.Y.S.3d 75 ; Kupersmith v. Winged Foot Golf Club, Inc. , 38 A.D.3d 847, 848, 832 N.Y.S.2d 675 ). Accordingly, we agree with the Supreme Court's determination granting those branches of the defendants' motions which were pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violations of Judiciary Law § 487 insofar as asserted against each of them.

"In an action to recover damages for fraud, the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury" ( Ginsburg Dev. Cos., LLC v. Carbone , 134 A.D.3d 890, 892, 22 N.Y.S.3d 485 [internal quotation marks omitted] ). "To show reliance, a party must demonstrate that [it] was induced to act or refrain from acting to [its] detriment by virtue of the alleged misrepresentation or omission" ( id. at 892, 22 N.Y.S.3d 485 [internal quotation marks omitted] ). "The plaintiff must show a belief in the truth of the representation and a change of position in reliance on that belief" ( Nabatkhorian v. Nabatkhorian , 127 A.D.3d 1043, 1044, 7 N.Y.S.3d 479 ; see Lazich v. Vittoria & Parker , 189 A.D.2d 753, 754, 592 N.Y.S.2d 418 ). "In addition, in any action based upon fraud, the circumstances constituting the wrong shall be stated in detail" ( Nabatkhorian v. Nabatkhorian , 127 A.D.3d at 1044, 7 N.Y.S.3d 479 [internal quotation marks omitted] ).

Here, the plaintiff also failed to state a cause of action alleging fraud. The plaintiff failed to allege facts that would support an inference that asserting affirmative defenses based on the plaintiff's purported release constituted knowing "misrepresentation or a material omission of fact which was false" ( Ginsburg Dev. Cos., LLC v. Carbone , 134 A.D.3d at 892, 22 N.Y.S.3d 485 [internal quotation marks omitted] ). The plaintiff also failed to allege facts that would support...