Page 1 30 Misc.3d 1213(A), 924 N.Y.S.2d 310, 2011 WL 182896 (N.Y.Sup.), 2011 N.Y. Slip Op.

50056(U) (Table, Text in WESTLAW), Unreported Disposition (Cite as: 30 Misc.3d 1213(A), 2011 WL 182896 (N.Y.Sup.))

NOTE: THIS OPINION WILL NOT APPEAR IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE. Supreme Court, Richmond County, New York. Delia PAINO and Joseph L. Paino, Plaintiff(s), v. KAIYES REALTY, LLC, Federal Standard Abstract Inc., Fidelity National Title Insurance Co., Anthony Reitano, Dominick Ali, Antonino Nick Tambarello, Venetian Development Construction Service Corp., Ital Credit Center, LLC., Home Abstract Corp., Stewart Title Insurance Co., Carlo Scissura, Vincent F. Spata, Dennis Lobaito, Harbourview Abstract Inc., and Christopher Dai, Defendant(s). No. 101316/2010. Jan. 18, 2011. JUDITH N. McMAHON, J. *1 This action was commenced by the plaintiffs seeking, inter alia, and as is relevant to the within motions, for fraud, conversion and to rescind/vacate two mortgage assignments alleged to be fraudulently effectuated. This action was commenced on or about June 8, 2010. Presently, no discovery has taken place as defendants Fidelity National Title Insurance Company [hereinafter known as Fidelity], Stewart Title Insurance Company [hereinafter known as Stewart Title] and Federal FN1 Standard Abstract Inc. , [hereinafter known as Federal] have each separately moved, pursuant to FN2 CPLR 3211(a)(7), to dismiss the complaint . The moving defendants contend that the plaintiff's complaint fails to state any causes of action as against each of them respectively. FN1. Plaintiff's contention that defendant Federal Standard Abstract's motion to dismiss must be treated as a motion for summary judgment because issue was joined,

is without merit. CPLR 3211(e) clearly provides that a motion to dismiss for failure to state a cause of action may be made at any subsequent time or in a later pleading. FN2. The Court will hereinafter refer to these three defendants as the moving defendants. At this juncture, the complaint pleads eight causes of action and surrounds the allegedly fraudulent assignment of two mortgages. The complaint FN3 states that on or about September 15, 2006, the plaintiffs, Delia Paino and Joseph Paino, deeded the property located at 1642 Bath Avenue, Brooklyn, New York [hereinafter known as the property] to defendant Kaiyes Realty, LLC [hereinafter known as Kaiyes]. The first cause of action relates to defendant Dominick Ali, the broker on the sale. The plaintiffs contend they paid commission to defendant Ali when they were sued by another broker alleging commissions were due. The plaintiffs under the first cause of action are suing defendant Ali for FN4 reimbursement of those damages and breach of his fiduciary obligation. FN3. The Court notes it has limited the facts with respect to the non-moving defendants where such facts were unrelated to the within moving defendants. FN4. Damages were awarded to the nonparty broker in the amount of $15,759.60. In this first transaction, the title abstract company for defendant Kaiyes was defendant Federal, serving as agent for defendant Fidelity. The complaint alleges that defendant Kaiyes delivered a purchase money mortgage on September 15, 2006, to the plaintiffs and said mortgage was not recorded by defendants Federal/Fidelity until February 28, 2008. The second cause of action details an alleged conversion whereby the defendants are said

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Page 2 30 Misc.3d 1213(A), 924 N.Y.S.2d 310, 2011 WL 182896 (N.Y.Sup.), 2011 N.Y. Slip Op. 50056(U) (Table, Text in WESTLAW), Unreported Disposition (Cite as: 30 Misc.3d 1213(A), 2011 WL 182896 (N.Y.Sup.))

to have forged the plaintiff's signature on an assignment of the abovementioned mortgage to defendant Ital Credit Center. This allegedly fraudulent assignment was purported to be recorded in Kings County by defendant Home Abstract, as agent for defendant Stewart Title. This second cause of action alleges that, the defendants, without authority, intentionally conspired to and did exercise control over the plaintiff's property, to wit, the Bath Avenue mortgage, thereby converting the mortgage to the defendants' own use and benefit and excluding the plaintiffs' ownership and possession, thereby causing the plaintiffs monetary damage. The third, fourth and fifth causes of action allege fraud, tortious inducement to breach a contract and conversion, respectively. The sixth cause of action relates to non-moving defendants Reitano and Spata for breach of fiduciary duty. The seventh and eighth causes of action request equitable relief in the form of vacatur/recission of the assignments FN5 and an injuction prohibiting transfer/sale of the property/mortgage pending determination by this Court. The instant motions to dismiss by defendants Fidelity, Stewart and Federal, only relate to the plaintiff's second, third, fourth, fifth, seventh and eighth causes of action. FN5. The Court notes there is another alleged assignment of this mortgage (not involving the moving defendants) from defendant Ital Credit Center to defendant Dennis Lobaito, which is the second assignment plaintiffs request to be vacated. *2 It is well settled that [i]n considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the pleaded facts are accepted as true and given every favorable inference ... [t]he court must determine whether the factual allegations taken from the four corners of the complaint manifest any cognizable cause of action ( Klepetko v. Reisman, 41 AD3d 551, 551 [2d Dept., 2007]; Gershon v. Goldberg, 30 AD3d 372, 273 [2d Dept., 2006] ). Additionally, all facts pleaded are to be presumed to be true and are to be accorded

every favorable inference, although bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration ( Gershon v. Goldberg, 30 AD3d at 373; Dinerman v. Jewish Bd. of Family and Children's Services, Inc., 55 AD3d 530, 530531 [2d Dept., 2008] ). Plaintiff's Second/Fifth Causes of Action: Conversion/Conspiracy A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession ( Dickinson v. Igoni, 76 AD3d 943, 945 [2d Dept., 2010]; Garelick v. Carmel, 141 A.D.2d 501, 502 [2d Dept., 1988] ). While New York does recognize a tort for aiding and abetting conversion ( Dickinson v. Ignoi, 76 AD3d at 945), it does not recognize a claim for conversion where the property involved is real property ( Garelick v. Carmel, 141 A.D.2d at 502). With respect to civil conspiracy to commit a tort, New York permits such a cause of action, however, a claim alleging conspiracy to commit a tort stands or falls with the underlying tort ( Dickinson v. Ignoi, 76 AD3d at 945). Here, clearly the claim of conversion is predicated upon the loss of a purchase money mortgage on the real property located at 1642 Bath Avenue, Brooklyn, New York. As such, the claim of conversion is inappropriate and shall be dismissed against the defendants ( Dickinson v. Igoni, 76 AD3d 943, 945 [2d Dept., 2010]; Garelick v. Carmel, 141 A.D.2d 501, 502 [2d Dept., 1988] ). The Court notes that even assuming a cause of action for conversion was recognized in the instant case, the plaintiff's complaint alleges no elements sufficient to establish that defendant Fidelity, Federal or Stewart, intentionally exercised control over the plaintiff's property such to interfere with their right of possession ( Klepetko v. Reisman, 41 AD3d 551, 551 [2d Dept., 2007]; Gershon v. Goldberg, 30 AD3d at 273; Garelick v. Carmel, 141 A.D.2d at

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Page 3 30 Misc.3d 1213(A), 924 N.Y.S.2d 310, 2011 WL 182896 (N.Y.Sup.), 2011 N.Y. Slip Op. 50056(U) (Table, Text in WESTLAW), Unreported Disposition (Cite as: 30 Misc.3d 1213(A), 2011 WL 182896 (N.Y.Sup.))

501). The allegations against Fidelity/Federal only purport to indicate the delay in their filing the uncontestedly valid original mortgage. Plaintiffs contention that defendants Fidelity/Federal converted plaintiffs property by having unfettered use of $15,752.00, the money it/they received at the closing for the mortgage tax and assorted recording fees, is completely without merit. Evidenced by plaintiff's own exhibit, defendants Fidelity/Federal used that money to pay for exactly what the plaintiff indicated it was for, the mortgage tax and recording fees. Further, the pleaded facts against defendant Stewart Title fail as well. As the evidenced by several affidavits, Stewart Title had no involvement whatsoever with the instant transactions. As such, the second cause of action for conversation is dismissed against all moving defendants (id. ). The claims for conspiracy to commit a tort fail as a matter of law with the underlying tort, namely conversion, and will be dismissed as well ( Dickinson v. Ignoi, 76 AD3d at 945). Plaintiff's Third Cause of Action: Fraud *3 In bringing a cause of action 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 ( Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 421[1996]; Tenenbaum v. Gibbs, 27 A.D.2d 722, 723 [2d Dept., 2006] ). Further, CPLR 3016(b) sets forth heightened particularity requirements for pleading causes of action or defenses based on fraud ( Gateway I Group v. Park Ave. Physicians, P.C., 62 AD3d 141, 149 [2d Dept., 2009] ). Here, the plaintiff's allegations against defendant Fidelity/Federal consist of their collective failure to file the legitimate mortgage, namely the one between plaintiffs and defendant Kaiyes Realty, timely. Even affording the plaintiff's complaint every favorable inference and presuming all

pleaded facts to be true, there are no allegations against defendants Fidelity/Federal which establish any element necessary to plead a cause of action for fraud ( Klepetko v. Reisman, 41 AD3d 551, 551 [2d Dept., 2007]; Gershon v. Goldberg, 30 AD3d 372, 273 [2d Dept., 2006]; Tenenbaum v. Gibbs, 27 A.D.2d 722, 723 [2d Dept., 2006] ). Interestingly, the mortgage filed by defendants Fidelity/Federal is not alleged to have been fraudulent or in any manner invalid. The plaintiff has presented no evidence that defendants Fidelity/Federal had any association with the alleged fraudulent assignments and as such, the third cause of action for fraud will be dismissed as against defendants Fidelity/Federal. With respect to defendant Stewart Title, the sole allegation against it claims it acted as principal for defendant Home Abstract in recording the alleged first fraudulent assignment. Defendant Stewart Title has presented an affidavit from Richard King, Vice President/Chief Claims Counsel for defendant Stewart, and Mark D'Addona, Vice President of defendant Home Abstract, who both affirmed that defendant Home Abstract, in its own capacity, recorded the alleged assignment, received an $80.00 fee and never issued any policy as an agent for defendant Stewart Title. In fact, Mr. D'Addona attested that any references to defendant Stewart Title are typographical errors as this transaction was performed by Home Abstract on its own accord and not as an agent for defendant Stewart Title. As such, affording all favorable inferences to the plaintiff, there is no allegation of misrepresentations by defendant Stewart (id.). Plaintiff alleges only that [t]he purported mortgage assignment was presented for recording to the Kings County City Register's Office on July 6, 2009 by the defendant Home Abstract, the agent for the defendant Stewart Title. Even assuming this fact as true, but clearly evidenced otherwise by defendants, the complaint still fails to allege any of the elements sufficient to establish a cause of action for fraud against defendant Stewart Title. Therefore, the third cause of action for fraud will be dismissed as against defendant Stewart Title as well.

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Page 4 30 Misc.3d 1213(A), 924 N.Y.S.2d 310, 2011 WL 182896 (N.Y.Sup.), 2011 N.Y. Slip Op. 50056(U) (Table, Text in WESTLAW), Unreported Disposition (Cite as: 30 Misc.3d 1213(A), 2011 WL 182896 (N.Y.Sup.))

Plaintiff's Fourth Cause of Action: Tortious Inducement to Breach a Contract *4 The elements of tortious interference with contractual relations are (1) the existence of a contract between the plaintiff and a third party, (2) the defendant's knowledge of the contract, (3) the defendant's intentional inducement of the third party to breach or otherwise render performance impossible, and (4) damages to the plaintiff ( Anesthesia Assoc. of Mount Kisco, LLP v. Northern Westchester Hosp. Ctr., 59 AD3d 473, 476 [2d Dept., 2009] ). Here, accepting the pleaded facts as true and yielding every favorable inference to the plaintiff's complaint, there are absolutely no allegations of defendant Fidelity, Federal or Stewart Title's intentional inducement of Kaiyes Realty to breach the mortgage contract with plaintiff. In fact, there are no allegations with respect to defendant's Fidelity/ Federal in any connection with the allegedly fraudulent assignments and/or their knowledge thereof. In addition, as previously indicated defendant Stewart Title had no involvement with the transactions and as a result, the plaintiff has failed to state their fourth cause of action against the moving defendants and their respective motions to dismiss will be granted on the tortious inducement to breach a contract cause of action. Plaintiff's Seventh and Eighth Causes of Action: Vacatur and Preliminary Injuction The plaintiffs' equitable causes of action fail as a matter of law as [a] party may obtain temporary injunctive relief only upon a demonstration of (1) irreparable injury absent the grant of such relief, (2) a likelihood of success on the merits, and (3) a balancing of the equities in that party's favor ( Winter v. Brown, 49 AD3d 526, 529 [2d Dept., 2008] ). Here, considering dismissal of all prior causes of action against the moving defendants, the equitable causes of action are inappropriate and are also dismissed. Accordingly, it is

ORDERED that the defendant Fidelity National Title Insurance Company's motion [002] to dismiss the complaint is hereby granted, and it is further ORDERED that the defendant Stewart Title Insurance Company's motion [003] to dismiss the complaint is hereby granted, and it is further ORDERED that the defendant Federal Standard Abstract Inc.'s motion [004] to dismiss the complaint, is hereby granted, and it is further, ORDERED that the complaint is dismissed as against defendants Fidelity National Title Insurance Company, Stewart Title Insurance Company and Federal Standard Abstract Inc. only and it is further ORDERED that the caption is amended to remove the abovementioned defendants, and it is further ORDERED that the defendants' request for attorneys fees and/or sanctions is hereby denied, and it is further ORDERED that all remaining parties are to appear for a preliminary conference on January 26, 2011, at 9:30 a.m., and it is further ORDERED that the Clerk enter Judgment accordingly. THIS IS THE DECISION AND ORDER OF THE COURT. N.Y.Sup.,2011. Paino v. Kaiyes Realty, LLC 30 Misc.3d 1213(A), 924 N.Y.S.2d 310, 2011 WL 182896 (N.Y.Sup.), 2011 N.Y. Slip Op. 50056(U) END OF DOCUMENT

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