Sugamele v. JPMC Specialty Mortg.

2018 NY Slip Op 34167(U)

THERESA SUGAMELE and DOROTHY HOLLMAN, Plaintiffs v. JPMC SPECIALTY MORTGAGE LLC, and FAY SERVICING, Defendant

Index No. 613238/17

Supreme Court, Nassau County

April 11, 2018

Unpublished Opinion

Motion Submitted: 2/15118

Motion Seq. No.: 002

PRESENT: Honorable James P. McCormack, Justice

JAMES P. MCCORMACK, JUDGE

The following papers read on this motion:

Notice of Motion/Supporting Exhibits........................................X

Affirmation in Opposition...........................................................X

Reply Affirmation........................................................................X

Defendants JPMC Specialty Mortgage, LLC (JPMC) and Fay Servicing (Fay) move this court for an order, pursuant to CPLR §§ 3211(a)(1) and (7), dismissing the complaint. Plaintiffs Theresa Sugamele (Sugamele) and Dorothy Hollman (Hollman) oppose the motion. ' Plaintiffs commenced this action by service of a Summons and Verified Complaint dated December 4, 2017. Defendants brought this motion to dismiss in lieu of an answer. This action involves real property that is also the subject of a foreclosure action pursuant to index number 641/13. The foreclosure action is near completion with the property having been sold at auction. Herein, the complaint contains six causes of action, to wit: 1) Trespass, 2) Conversion, 3) Private Nuisance, 4) Outrageous conduct causing emotional distress, 5) Breach of contract and 6) Negligence.

A party seeking relief pursuant to CPLR 3211(a)(1) “'on the ground that its defense is founded upon documentary evidence has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim' "(Flushing Say. Bank, FSB v. Siunykalimi, 94 A.D.3d 807, 808 [2d Dept 2012], quoting Mazur Bros. Realty, LLC v. State of New York, 59 A.D.3d 401, 402 [2d Dept 2009]; see Leon v. Martinez, 84 N.Y.2d 83, 88 [1994]). "[T]o be considered 'documentary,' evidence must be unambiguous and of undisputed authenticity" (Fontanetta v. John Doe 1, 73 A.D.3d 78, 86 [2d Dept 2010]).

A motion to dismiss a complaint pursuant to CPLR § 321((a)(1) may be granted only if the documentary evidence submitted by the moving party "utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law" (Kopelowttz & Co., Inc. v. Mann, 83 A.D.3d 793, 796 [2d Dept 2011]; Fontanetta v. John Doe 1, 73 A.D.3d 78, 83 [2d Dept. 2010]).

In order for evidence to qualify as "documentary," it must be unambiguous, authentic, and undeniable (Fontanetta v John Doe 1, 73 A.D.3d 78, 84-86 [2d Dept 2010]). Neither affidavits, deposition testimony, nor letters are considered "documentary evidence" under CPLR S 3211 (a) (I) (see Suchmacher v Manana Grocery, 73 A.D.3d 1017 [2d Dept 2010]; Fontanetta v John Doe 1, 73 A.D.3d at 85-87 [2d Dept 2010]). Affidavits submitted by a defendant "will almost never warrant dismissal under CPLR § 3211" (Lawrence v Miller, 11 N.Y.3d 588, 595 [2008]). In the context of CPLR § 3211(a)(1), the narrow exception to this general rule might be affidavits used solely to establish the bona fides of other, genuinely documentary evidence.

"To succeed on a motion to dismiss pursuant to CPLR § 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim" (Tietler v Pollack & Sons, 288 A.D.2d 302 [2d Dept 2001]; see also, Held v Kaufman, 91 N.Y.2d 425, 430-431 [1998]; Leon v Martinez, 84 N.Y.2d 83, 88 [1994]; Museum Trading Co. v Bantry, 281 A.D.2d 524 [2d Dept 2001]; Jaslow v Pep Boys-Manny, Moe & Jack, 279 A.D.2d 611 [2d Dept 2001]).

In reviewing a motion to dismiss for failure to state a cause of action pursuant to CPLR § 3211(a)(7), the court is to accept all facts alleged in the complaint as being true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the alleged facts fit within any cognizable legal theory (see Delbene v. Estes, 52 A.D.3d 647 [2nd Dept. 2008]; see also 511 W.232nd Owners Corp. v. Jennifer Realty Co., 98 NY2D 144 [2002]. Pursuant to CPLR § 3026, the complaint is to be liberally construed. Leon v. Martinez, 84 N.Y.2d 83 [1994]. It is not the court's function to determine whether plaintiff will ultimately be successful in proving the allegations. Aberbach v. Biomedical Tissue Services, 48 A.D.3d 716 [2nd Dept. 2008]; see also EBCI, Inc. v. Goldman Sachs & Co., 5 NY3D 11 [2005].

The pleaded facts, and any submissions in opposition to the motion, are accepted as true and given every favorable inference (see 511 W. 323nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d at 151-152; Dana v. Malco Realty, Inc., 51 A.D.3d 621 [2d Dept 2008]; Gershon v. Goldberg, 30 A.D.3d 372, 373 [2d Dept 2006]). However, a court may consider evidentiary material submitted by a defendant in support of a motion to dismiss a complaint pursuant to CPLR 9 321I(a)(7) (see CPLR 9 3211[c]; Sokol v. Leader, 74 A.D.3d at 1181). "When evidentiary material is considered" on a motion to dismiss a complaint pursuant to CPLR § 3211(a)(7), the criterion is whether the plaintiff has a cause of action, not whether they have properly stated one, and unless it has been shown that a material fact as claimed is not a fact at all or that no significant dispute exists, the dismissal should not be granted (Guggenheimer v. Ginzburg, 43 N.Y.2d at 275; see Sokol v. Leader, 74 A.D.3d at 1182).

The underlying behavior of which Plaintiffs complain is Defendants' alleged entering of the property. Plaintiffs allege that Defendants entered the property on December 15, 2016, and changed the locks to the house situated thereon. It is undisputed that the property had been unoccupied, but Plaintiffs assert the property had not, and has not been abandoned. Annexed to their complain,, Plaintiffs include a letter written to Defendants expressing concern "that someone is coming in & [sic] out the house and removing the contents...Please refrain from entering the premises and make sure said property is secure". (Emphasis added).

Real Property and Proceedings Law (RPAPL) §1307(1) and (2) hold, in pertinent part:

1. A plaintiff in a mortgage foreclosure action who obtains a judgment of foreclosure and sale pursuant to section thirteen hundred fifty-one of this article, involving residential real property, as defined in section thirteen hundred five of this article, that is vacant, or becomes vacant after the issuance of such judgment, or is abandoned by the mortgagor but occupied by a tenant, as defined under section thirteen hundred five of this article, shall maintain such property until such time as ownership has been transferred through the closing of title in foreclosure. or other disposition, and the deed for such property has been duly recorded...

2. Such plaintiff shall have the right to peaceably enter upon such property, or to cause others to peaceably enter upon the property for the limited purpose of inspections, repairs and maintenance as required by this section, or as otherwise ordered by court...

Defendants make two main arguments in support of their motion. The first is that there is no evidence that they ever entered the premises. The second is that even if they did enter the premises, they are under an obligation pursuant to RPAPL § 1307 to maintain the premises, and have the right to enter the property pursuant the "Covenants" section of the mortgage, section (7)(b). That section states the lender, or one authorized by the lender, may enter the property for purposes of inspection. However, the lender is supposed to give the mortgagor notice that such an inspection will occur.

The argument that there is no proof that it was Defendants who entered the property is without merit for the purposes of the motion to dismiss. The court is to assume all allegations in the complaint are true. The complaint alleges Defendants entered the property, and Defendants offer no evidence to refute that allegation.

The RPAPL § 1307 argument is more complex. Initially, the court must determine whether there is a difference "vacant", "abandoned" and "unoccupied.. The former two terms are found in the statute while the latter term is used by Plaintiffs. "Abandoned" is clearly different from the other two terms in that it denotes a desire by the owner to not return. "Vacant" and "unoccupied" contain no such desire. Dictionary.com actually uses "unoccupied" to help define "vacant". However, Blacks Law Dictionary defines "vacant" as "a building that does not have any contents or inhabitants," and defines "Unoccupied" as a "Property classification where it is not occupied by people but can have goods and furniture in it." Herein, Plaintiffs repeatedly assert that the property still contains goods in it, and cars on the property.

Based upon the Blacks Law definitions, Plaintiffs admission that the property is unoccupied would not invoke RPAPL §1307. However, complicating the matter is the fact that, in their letter to Defendants, made a part of the their complain,, Plaintiffs demand that Defendants "make sure" the property is secure. The court does not believe that Defendants can "make sure" the property is secure without entering it, and without inspecting it. While the letter is therefore contradictory, it is clear Plaintiffs wanted Defendants to ensure the property was secure.

A cause of action for trespass to real property requires a showing of an intentional entry onto the land of another absent permission. (Julia Properties, LLC v. Levy, 137 A.D.3d 1224 [2d Dept. 2016]). Plaintiffs' admitted direction to Defendants...