Rhttps://www.nycourts.gov/reporter/3dseries/2025/2025_50862.htmotonde v Stewart Title Ins. Co. 2025 NY Slip Op 50862(U) Decided on May 23, 2025 Supreme Court, Westchester County Jamieson, is plaintiffs new try at litigating claims over transfer of the Mamaroneck Beach Realty Group. It fails for a number of reasons.

“In this case, the verified complaint contains five causes of action. All involve the events leading up to and culminating in the closing of a transaction regarding the Property that occurred in November 2018. Specifically, in the complaint, plaintiff asserts that he “was listed as a Member of Mamaroneck Beach Realty Group, LLC, as established by incorporation documents filed with the New York State Secretary of State on October 25th, 2018;”^[FN3] “Any documents executed by any third party on behalf of Mamaroneck Beach Realty Group, LLC on November 14th, 2018, were fraudulently allowed by Stewart Title and the above defendants;” “Defendant Stewart Title Insurance Company, which insured the transaction . . . failed to verify the ownership of the purchasing LLC, allowing an unauthorized individual to close the transaction, causing significant financial loss, economic harm, and emotional distress for years. . . .;” and “Ms. Dall and Mr. Jonathan Feinsilver, [sic] fraudulently transferred the ownership documents from KJA to AJK overnight through fraud between November 13 and November 14, 2018 with [sic]^[FN4] the knowledge of the Plaintiff. . . . At no point prior to the closing or the day of the closing was Mr. Joseph Rotonde notified via email, phone, or text that this LLC switch was taking place by any of the defendants or his partners including the lake house [sic].”

The five causes of action are (1) for a “declaratory judgment holding Stewart Title Insurance Company and the defendants liable for negligence in failing to verify LLC ownership as a requirement of the purchase and sale contracts” at the November 2018 closing; (2) negligence because “Stewart Title and the defendants owed a duty of care to verify the authorized representative of the LLC as per the purchase and sale agreements” at the closing; (3) tortious interference with a contract because “Stewart Title and the defendants interfered with the transaction by failing to verify IRS documents and the NYS Certificate of Formation, allowing a third party to close on the transaction;” (4) aiding and abetting fraud, because “Stewart Title and the defendants knowingly failed to verify essential documents, participating and assisting in a fraudulent transaction;” and (5) breach of the implied covenant of good faith and fair dealing because “Under New York law, all contracts imply a covenant of good faith and fair dealing in the course of performance, which embraces a pledge that neither party shall do anything which will have the effect of destroying the right of the other party to receive the fruits [*2]of the contract.”

The Court begins with the motion to dismiss for lack of jurisdiction. Plaintiff submits to the Court a document that purports to be an affidavit of service. It says merely that Dall was served by serving “BRANDON COOMBS. MALE, 1601bs, BLACK SKIN, BLACK HAIR, 21- 35yrs old.” The document does not state when Dall was allegedly served by serving Coombs. The document does not state where Dall was allegedly served. The document does not state who Coombs is (doorman, roommate, neighbor, delivery person, random stranger, etc.). The document does not state what documents were delivered to Coombs. The document does not state why Coombs was served on Dall’s behalf. As CPLR § 308(2) requires that the affidavit of service “shall identify such person of suitable age and discretion and state the date, time and place of service. . .”, the Court finds that this purported affidavit of service does not demonstrate that Dall was served pursuant to this section of the CPLR.

Nor does the document state that the mailing required by CPLR § 308(2) was sent to Dall. In apparent acknowledgement of the mailing requirement, plaintiff submits to the Court evidence that he sent some documents to Dall by UPS in December 2024, which appears to be well before he served Coombs (or at least well before the date on the purported affidavit of service). Yet this does not constitute compliance with CPLR § 308(2). This section, in relevant part, states that if personal service is not made, a party has to follow a second step: “mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend ‘personal and confidential’ and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing. . . .”

Plaintiff did not do this. He did not mail the summons by first class mail; he did not put it in the appropriate envelope; he did not mail it within 20 days of the delivery; and he did not file the proof of such service. “The law is well settled that personal jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been complied with. The mailing requirement of CPLR 308(2) is to be strictly construed. The failure to comply with CPLR 308(2)’s mailing requirement is a jurisdictional defect warranting a finding as a matter of law that service thereunder was invalid.” AMK Cap. Corp. v. Plotch, 230 AD3d 26, 31, 214 N.Y.S.3d 10, 13 (1st Dept. 2024). Accordingly, the Court finds that service was invalid, and for this reason alone, Dall must be dismissed from the action.

However, there are other bases on which to dismiss Dall from the action. It has long been settled that “to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the Statute of Limitations, a defendant bears the initial burden of establishing prima facie that the time in which to sue has expired.” Savarese v. Shatz, 273 AD2d 219, 220, 708 N.Y.S.2d 642 (2d Dept. 2000). A review of the complaint shows that each and every claim arises out of the November 2018 closing for the Property or events preceding the closing. This action was filed in December 2024, more than six years after the closing. Some of the claims, as explained below, have three year statutes of limitations. As to those claims, Dall has satisfied her prima facie burden of establishing their untimeliness. Dall has also satisfied her burden as to the claims with six year statutes of limitation, since the events in question occurred more than six [*3]years ago.

“If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period.” Vega v. Hempstead Union Free Sch. Dist., 235 AD3d 696, 697, 226 N.Y.S.3d 341, 343 (2d Dept. 2025).

In his opposition, plaintiff asserts that his claims are timely, based on several different arguments. First, he asserts that his fraud claims are “timely within six years of the actor [sic] two years from discovery,” and that he only “discovered the fraudulent acts during discovery in the related action (Index No. 53123/2021).” Next, he argues that he was “unable to pursue claims earlier due to serious medical hardship, including a recurrence of cancer in 2019-2020, cancer treatment in 2020-2021, including in 2023 and 2024 [sic] Under CPLR § 208 (Disability Tolling), the statute of limitations is tolled when a litigant suffers from a physical or mental disability that prevents them from timely pursuing legal remedies.” In support of this assertion, he cites one case that does not apply and other cases that simply do not exist.^[FN5] Finally, plaintiff argues that “the COVID-19 pandemic further extended procedural deadlines, as recognized in Executive Order No. 202.8, issued by Governor Cuomo on March 20, 2020, and subsequent orders extending statutory deadlines until November 3, 2020.”

The Court begins with plaintiff’s CPLR § 208 argument. Although plaintiff invokes it to cover a physical disability, the plain language of this section shows that it applies only to “disability because of infancy or insanity.” It is thus irrelevant here, as plaintiff is not an infant, and does not claim insanity.

Nor does the fraud discovery rule assist plaintiff, for two reasons. First, despite the fact that he states that he learned about the alleged fraud during discovery in the related action, plaintiff does not state what he learned and when he learned it. This alone is fatal to plaintiff’s argument that he learned anything. More importantly, however, in a Decision and Order that this Court issued in September 2022 in the prior action (more than two years prior to the commencement of this action) in which the Court granted plaintiff’s motion to amend the complaint to include fraud claims, the Court stated that plaintiff argued that “the parties have substantially completed discovery of all issues existing prior to the proposed amendment.” The Court allowed the amendment because according to plaintiff, it “relies upon the very same [*4]underlying facts and transactions that have been at issue from the outset of this action and have been developed in the discovery process in which all parties participated.” Any information that plaintiff allegedly first learned from the prior action would have been prior to September 2022, which is more than two years prior to the commencement of this action. Accordingly, the discovery rule does not help him.

Turning to plaintiff’s argument that the Executive Orders extended the statutes of limitations, the Court agrees that this is the case. See, e.g., Suber v. Churchill Owners Corp., 228 AD3d 414, 415, 214 N.Y.S.3d 1, 3 (1st Dept. 2024) (“Plaintiff is correct that the pandemic-related executive orders constituted a toll of the applicable statute of limitations.”). However, this only make a difference with any claims that have six-year statutes of limitation; tolling cannot extend statutes of limitations that expired long before plaintiff commenced this action. Murphy v. Harris, 210 AD3d 410, 411, 177 N.Y.S.3d 559, 561 (1st Dept. 2022) (explaining that time remaining on claim continued to run again on November 20, 2020). That is to say, the negligence claim, see Castle Oil Corp. v. Thompson Pension Emp. Plans, Inc., 299 AD2d 513, 514, 750 N.Y.S.2d 629, 631 (2d Dept. 2002), and the tortious interference claim, see Ullmannglass v. Oneida, Ltd., 86 AD3d 827, 829, 927 N.Y.S.2d 702, 705 (3d Dept. 2011), are both time-barred on their face, as these claims expired in 2021 (taking the Executive Order extensions into account).

The remaining claims require more analysis. “On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration. Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.” Barbetta v. NBCUniversal Media, LLC, 227 AD3d 763, 765—66, 212 N.Y.S.3d 135, 139 (2d Dept. 2024).

Beginning with the aiding and abetting fraud claim, which has a six-year statute of limitations and is timely, a review of the complaint reveals that it must be dismissed for substantive reasons. First, it is duplicative of the negligence claim. Amid v. Del Col, 223 AD3d 698, 700, 203 N.Y.S.3d 184, 187 (2d Dept. 2024) (claim alleging aiding and abetting fraud “arise[s] from the same facts as the cause of action alleging legal malpractice and are duplicative of that cause of action”); Hoffman v. RSM U.S. LLP, 169 AD3d 522, 523, 94 N.Y.S.3d 265, 267 (1st Dept. 2019) (“To the extent both the malpractice and aiding and abetting fraud claims allege that defendants ignored their professional duties, they are duplicative. To the extent both the malpractice and aiding and abetting fraud claims are based on defendants’ conflicts of interest, they are duplicative. To the extent both claims are based on nondisclosure, they are duplicative.”). For this reason, the aiding and abetting claim must be dismissed.

Second, it should be dismissed because the underlying fraud has not been sufficiently pleaded. Goldberg v. KOSL Bldg. Grp., LLC, 236 AD3d 995 (2d Dept. 2025) (“Since a cause of action alleging aiding and abetting fraud cannot lie without the underlying fraud having been sufficiently pleaded, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of action, alleging aiding and abetting fraud, insofar as asserted against them.”). See also Weinstein v. CohnReznick, LLP, 144 [*5]AD3d 1140, 1141, 43 N.Y.S.3d 387, 389 (2d Dept. 2016) (Aiding and abetting fraud claim properly dismissed where it “failed to satisfy the particularity requirements of CPLR 3016”).

Turning next to the declaratory judgment cause of action, it states that “Plaintiff seeks a declaratory judgment holding Stewart Title Insurance Company and the defendants liable for negligence in failing to verify LLC ownership as a requirement of the purchase and sale contracts.” It seeks money damages of “no less than” $5 million. At the outset, the Court notes that it has long been settled that a “declaratory judgment action is generally appropriate only where a conventional form of remedy is not available. Where alternative conventional forms of remedy are available, resort to a formal action for declaratory relief is generally unnecessary and should not be encouraged. . . . It is unnecessary where an action at law for damages will suffice.” Bartley v. Walentas, 78 AD2d 310, 312, 434 N.Y.S.2d 379, 381—82 (1st Dept. 1980). For this reason alone this cause of action should be dismissed.

But it is also clear that this declaration arises out of plaintiff’s negligence claim. As such, the three-year statute of limitations for negligence applies. This is because “where a declaratory judgment . . . action involves claims that could have been made in another proceeding for which a specific limitation period is provided, the action is subject to the shorter limitations period.” Morton v. New York City Bd. of Educ. Ret. Sys., 229 AD3d 619, 620, 215 N.Y.S.3d 447, 450 (2d Dept. 2024). Vigilant Ins. Co. of Am. v. Hous. Auth. of City of El Paso, Tex., 87 NY2d 36, 40—41 (1995) (“the CPLR prescribes no general period of limitation for a declaratory judgment action. Courts must look to the underlying claim and the ‘nature of the relief sought’ to determine the applicable period of limitation.”). Further, this claim is also duplicative of the negligence claim. Florence Cap. Advisors, LLC v. Thompson Flanagan & Co., LLC, 214 AD3d 498, 500—01, 186 N.Y.S.3d 156, 159 (1st Dept. 2023) (“The declaratory judgment cause of action fails because the existing claims for negligence and breach of contract provided full and complete relief.”). For this reason as well, it should be dismissed.

Turning to the cause of action for breach of the implied covenant of good faith and fair dealing, this claim states that “Under New York law, all contracts imply a covenant of good faith and fair dealing in the course of performance, which embraces a pledge that neither party shall do anything which will have the effect of destroying the right of the other party to receive the fruits of the contract.” Plaintiff does not explain to what contract he refers.

In her moving papers, Dall asserts that “Plaintiff bases this as well as all of his causes of action on one premise – he was a member of MBRG and thus should have been the one to sign all documents at closing not some ‘third party.’ As with the Third Cause of Action for tortious interference with contract, Plaintiff once again fails to allege that he was a party to any contract. The contract was between MBRG and the Seller, not Plaintiff. Nor does he specifically allege any breach of the covenant by defendant Dall who also was not a party to the contract.” Plaintiff entirely ignores this cause of action in his opposition papers. He thus fails to rebut movant’s prima facie showing. As a result, the Court must dismiss the cause of action for breach of the implied contract of good faith and fair dealing.”