Edelman v Berman  2021 NY Slip Op 04120 Decided on June 30, 2021
Appellate Division, Second Department presents an interesting real estate legal malpractice claim.  It illustrates two points.  First:  No document is absolutely required to show an attorney-client relationship.  Second:  Violation of a statute or rule, combined with alleged damage can support a legal malpractice claim.

“”On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Shah v Exxis, Inc., 138 AD3d 970, 971). “Where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed” (Bodden v Kean, 86 AD3d 524, 526).

Applying this standard, the Supreme Court properly granted that branch of the Wisnicki defendants’ motion which was to dismiss the cause of action to recover damages for fraud insofar as asserted against them. “The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages” (Mitchell v Diji, 134 AD3d 779, 780 [internal quotation marks omitted]). “When a plaintiff brings a cause of action based upon fraud, ‘the circumstances constituting the wrong shall be stated in detail'” (Sargiss v Magarelli, 12 NY3d 527, 530, quoting CPLR 3016[b]). Here, the complaint did not allege in any detail any misrepresentations that were made to the plaintiff by the Wisnicki defendants or of which the Wisnicki defendants had knowledge.

However, the Supreme Court erred in granting those branches of the Wisnicki defendants’ motion which were to dismiss the causes of action alleging legal malpractice and violation of Real Property Law § 265-a insofar as asserted against them. As to the legal malpractice cause of action, the Wisnicki defendants contend that they had no attorney-client relationship with the plaintiff. An attorney-client relationship may arise even in the absence of a written retainer agreement, and a court must look to the words and actions of the parties to determine whether such a relationship exists (see Tropp v Lumer, 23 AD3d 550, 551). Here, according the plaintiff the benefit of every favorable inference, she sufficiently alleged the existence of an attorney-client relationship (see Hall v Hobbick, 192 AD3d 776see also Tropp v Lumer, 23 AD3d at 551).

An action for damages or equitable relief for violations of Real Property Law § 265-a may be commenced against, among others, “a person who in any manner solicits, induces, arranges, or causes any equity seller to transfer title . . . to [a] residence in foreclosure” (Real Property Law § 265-a[2][j]; see id. § 265-a[2][e]; [9]). Here, construing the allegations in the light most favorable to the plaintiff, the facts alleged state a cognizable cause of action against the Wisnicki defendants for violation of Real Property Law § 265-a.”

Plaintiffs, parties to a FTC action, were co-parties with another, whom it seems, was treated differently by the attorneys.  InLabMD, Inc. v Buchanan 2021 NY Slip Op 04084 Decided on June 24, 2021 Appellate Division, First Department we see them strike out.  Dismissal is affirmed across the board.

“Despite their characterization in the amended complaint, plaintiffs’ claims all sound in subornation of perjury in the prior litigation with the FTC. Such claims are not permitted in a subsequent plenary action (Serrante v Moses & Singer LLP, 137 AD3d 697 [1st Dept 2016]).

Plaintiffs’ claim under Judiciary Law § 487 was properly dismissed because the conduct alleged did not take place in a New York court (Shawe v Elting, 161 AD3d 585, 588 [1st Dept 2018]).

Plaintiffs’ claims for negligent and fraudulent omission fail because they did not allege a “near privity” relationship with defendants, who were expressly representing a different party (cf. Millennium Import, LLC v Reed Smith LLP, 104 AD3d 190, 194 [1st Dept 2013]).

Plaintiffs’ claims for tortious interference with the fiduciary relationship fail because they do not establish that their co-plaintiff in the joint representation agreement was a fiduciary, or a partner or joint venturer.

Their claim that defendants interfered with the joint representation agreement fails because any breach occurred before defendants’ alleged actions, and the agreement expressly carves out disclosure of information related to separate legal matters including testimony in other proceedings.

Finally, plaintiffs‘ claim that they could amend the complaint without leave is incorrect. CPLR 3025 allows a plaintiff to amend “once” without leave. Plaintiffs had already done so. Furthermore, their amended complaint did not cure the infirmities referenced above, and thus was futile. No appeal lies from the denial of plaintiffs’ motion to reargue (Crimlis v City of New York, 179 AD3d 575, 576 [2020]).”

Lewis v Pierce Bainbridge Beck Price Hecht LLP  2021 NY Slip Op 03911
Decided on June 17, 2021 Appellate Division, First Department shows the high bar for a Judiciary Law § 487 claim.  “Troubling” is just not enough.

“The alleged statements made by defendant Conley in the course of litigation are immune from liability for defamation based on an absolute privilege (see Front, Inc. v Khalil, 24 NY3d 713, 718 [2015]). Plaintiff failed to show that these statements, made in a motion to dismiss plaintiff’s initial New York complaint and after litigation had commenced, were “material and pertinent to the questions involved” in the litigation (id. [internal quotation marks omitted]; see Flomenhaft v Finkelstein (127 AD3d 634, 637 [1st Dept 2015] [test of pertinence is “extremely liberal”] [internal quotation marks omitted]). Conley’s alleged pre-litigation statements are protected by a qualified privilege (see id. 719-720 [2015]). Plaintiff failed to show that Conley did not have a good-faith basis for anticipating that litigation was bound to occur (id. at 720). Accordingly, plaintiff’s aiding and abetting defamation claim was properly dismissed.

Plaintiff’s prima facie tort claim was also properly dismissed. The vague allegation that plaintiff sustained “irreparable harm” to his reputation and career is insufficient to allege the requisite special damages so as to assert a prima facie tort claim (Freihofer v Hearst Corp., 65 NY2d 135, 143 [1985]). Similarly, dismissal of the Judiciary Law § 487 claim was appropriate. While counsel’s communications and statements surrounding the withdrawal of the action filed in New York, which we assume to be true on a CPLR 3211 (a)(7) motion, and defendants’ subsequent reliance on said withdrawal in a California action, are troubling, the complaint fails to allege damages proximately caused by the alleged deceit (see Doscher v Mannatt, Phelps & Phillips, LLP, 148 AD3d 523, 524 [1st Dept 2017]).”

We’ve often asserted anecdotally that there are far more dismissals at the pleading stage in legal malpractice than in other areas of the law.  Compare, for example, dismissals in medical malpractice.  We believe that there are almost none.  There are a lot of summary judgment dismissals in legal malpractice as well.  Here, in Leeder v Antonucci
2021 NY Slip Op 03978 Decided on June 17, 2021 Appellate Division, Fourth Department we some of both.

“Memorandum: Plaintiff commenced this action seeking damages for alleged legal malpractice arising from defendant’s representation of plaintiff in two separate matters. On a prior appeal from an order and judgment granting defendant’s cross motion for summary judgment dismissing the complaint, this Court modified the order and judgment by denying the cross motion in part and reinstating plaintiff’s second cause of action (estate cause of action)—which alleged malpractice in defendant’s handling of an estate accounting proceeding—on the ground that plaintiff raised a triable issue of fact whether that cause of action was untimely (Leeder v Antonucci, 174 AD3d 1469, 1470-1471 [4th Dept 2019]). This Court then remitted the matter to Supreme Court to address that part of the cross motion seeking summary judgment dismissing the estate cause of action on the ground that plaintiff failed to sufficiently allege damages on that cause of action (id. at 1471).

Upon remittal, the court granted that part of the cross motion seeking summary judgment dismissing the estate cause of action, concluding that defendant established that plaintiff’s damages claim was speculative and that plaintiff failed to raise a triable issue of fact in opposition. In appeal No. 1, plaintiff appeals from an order and judgment granting the cross motion to that extent and dismissing the remainder of the complaint. In appeal No. 2, plaintiff appeals from an order denying his motion for leave to reargue and renew his opposition to defendant’s cross motion with respect to the estate cause of action.

Addressing appeal No. 1, we conclude that the court properly granted the cross motion. “[A] necessary element of a cause of action for legal malpractice is that the attorney’s negligence caused a loss that resulted in actual and ascertainable damages” (New Kayak Pool Corp. v Kavinoky Cook LLP, 125 AD3d 1346, 1348 [4th Dept 2015] [internal quotation marks omitted]; see Leeder, 174 AD3d at 1469). Furthermore, “[c]onclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action” (New Kayak Pool Corp., 125 AD3d at 1348 [internal quotation marks omitted]). Here, defendant met his initial burden on the cross motion by establishing that plaintiff’s allegations of damages with respect to the estate cause of action are speculative (see id.Lincoln Trust v Spaziano, 118 AD3d 1399, 1401-1402 [4th Dept 2014]). In opposition, plaintiff failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). With respect to plaintiff’s opposition, we perceive no error in the court’s rejection of the estate account summary that plaintiff submitted, [*2]which was purportedly prepared by a retained expert. Plaintiff did not submit the summary until nearly a month after the original oral argument on defendant’s cross motion (see Kopeloff v Arctic Cat, Inc., 84 AD3d 890, 890-891 [2d Dept 2011]). Contrary to plaintiff’s contention, the submission was untimely. The fact that the deadline in the court’s scheduling order for disclosure of expert witnesses had not yet passed did not relieve plaintiff of his burden to “lay bare his proof and show that a genuine question of fact exists” in opposition to the cross motion for summary judgment (Oot v Home Ins. Co. of Ind., 244 AD2d 62, 71 [4th Dept 1998]; see also CPLR 3212 [f]). In any event, the estate account summary is conclusory, speculative, and insufficient to raise a triable issue of fact (see generally Feldmeier v Feldmeier Equip., Inc., 164 AD3d 1093, 1099 [4th Dept 2018]).”

After a verdict in favor of the attorney, ending in dismissal, the Appellate Division, First Department affirmed.  The claimed departure was the failure to call a certain medical expert.  The jury disagreed with Plaintiff and found for defendant in Warren v Silas 2021 NY Slip Op 03930
Decided on June 17, 2021 Appellate Division, First Department.

“Here, the jury’s verdict that defendant did not depart from the requisite standard of care by failing to call surgeon Dr. Barbara Justice as an expert witness at the trial of plaintiff’s medical malpractice action was not utterly irrational or against the weight of the evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). The record presents a valid line of reasoning and permissible inferences that could have led the jury to find that before defendant rested his case, he informed the trial court that he intended to call Dr. Justice but could not locate her during the recess. The jury could have reasonably concluded that under the circumstances defendant could not have done more to secure Dr. Justice’s testimony and therefore, in not calling her before resting, he did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession (Rudolf, 8 NY3d at 442).

This conclusion by the jury was also not against the weight of the evidence (see Cohen, 45 NY2d at 498; CPLR 4404[a]). Plaintiff is not entitled to a new trial on the ground that the trial court admitted defendant’s hearsay testimony about his conversations with Dr. Justice, since that testimony was adduced by plaintiff, who also was permitted to give hearsay testimony about Dr. Justice’s statements. Nor did plaintiff demonstrate that she is entitled to a directed verdict, given the compelling evidence in favor of the defendant in the underlying medical malpractice action (see Warren v New York Presbyt. Hosp., 88 AD3d 591 [1st Dept 2011], lv denied 19 NY3d 806 [2012]). In light of that evidence, plaintiff cannot establish that she would have prevailed “but for” her lawyer’s failure to bring Dr. Justice to the stand (Rudolf, 8 NY3d at 442).”

Judiciary Law § 487 is ancient, strict and sparse.  It rarely succeeds and in Kaufman v Moritt Hock & Hamroff, LLP  2021 NY Slip Op 01969 [192 AD3d 1092] March 31, 2021 Appellate Division, Second Department is denied outright.

“Relief pursuant to Judiciary Law § 487 “is not lightly given” (Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601 [2014]), and requires a showing of “egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys” (Savitt v Greenberg Traurig, LLP, 126 AD3d 506, 507 [2015] [internal quotation marks omitted]; see Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615 [2015]; Wailes v Tel Networks USA, LLC, 116 AD3d 625, 625-626 [2014]). “A cause of action alleging a violation of Judiciary Law § 487 must be pleaded with specificity” (Betz v Blatt, 160 AD3d 696, 698 [2018]; see Sammy v Haupel, 170 AD3d 1224, 1225 [2019]).

The complaint essentially alleges only that in the underlying Surrogate’s Court [*2]matters, the defendants advocated for certain legal and factual positions on behalf of their client. Under these circumstances, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint, finding that these allegations, even if proven, would not entitle the plaintiff to relief pursuant to Judiciary Law § 487 (see Sammy v Haupel, 170 AD3d at 1225-1226; Seldon v Lewis Brisbois Bisgaard & Smith LLP, 116 AD3d 490, 491 [2014]; Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 759 [2014]; see also Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 636-637 [2018], affd 35 NY3d 173 [2020]).”

Successful Judiciary Law § 487 cases are very rare.  The hurdles are quite high for the proponent as is shown in Cordell Marble Falls, LLC v Kelly
2021 NY Slip Op 00833 [191 AD3d 760] February 10, 2021 Appellate Division, Second Department.

“In April 2013, nonparty Whitecap (US) Fund, L.P. (hereinafter Whitecap), commenced an action against the plaintiffs in which it was alleged, inter alia, that the plaintiffs breached their fiduciary duties related to a land development project (hereinafter the prior action). The defendants, Munsch Hardt Kopf & Harr, P.C., and Cara Mittleman Kelly, were the attorneys who represented Whitecap in the prior action. During the course of the prior action, Whitecap submitted affidavits executed by Eric Kamisher and Westin Lovy in which they stated that the plaintiffs failed to provide required financial disclosure. In October 2013, after it was learned that the plaintiffs had complied with their financial disclosure obligations, the Supreme Court granted Whitecap’s motion to voluntarily discontinue the prior action.

Thereafter, the plaintiffs commenced this action against the defendants to recover damages for violation of Judiciary Law § 487 based on the defendants’ filing of the Kamisher and Lovy affidavits in the prior action, which the plaintiffs alleged contained knowingly false [*2]information intended to deceive the Supreme Court. The defendants moved pursuant to CPLR 3211 (a) to dismiss the complaint. In an order entered October 23, 2017, the Supreme Court granted the defendants’ motion. Subsequently, a judgment was entered on November 21, 2017, in favor of the defendants and against the plaintiffs, dismissing the complaint. The plaintiffs appeal.

“In assessing the adequacy of a complaint under CPLR 3211 (a) (7), the court must give the pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff ‘the benefit of every possible favorable inference’ ” (J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 21 NY3d 324, 334 [2013], quoting AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]). “A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211 (a) (7)” (Sokol v Leader, 74 AD3d 1180, 1181 [2010]; see CPLR 3211 [c]). “If the court considers evidentiary material, the criterion then becomes ‘whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one’ ” (Sokol v Leader, 74 AD3d at 1181-1182, quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). “[B]are legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true” (Parola, Gross & Marino, P.C. v Susskind, 43 AD3d 1020, 1021-1022 [2007]).

Under Judiciary Law § 487 (1), an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is liable to the injured party for treble damages (see Shaffer v Gilberg, 125 AD3d 632, 636 [2015]; Curry v Dollard, 52 AD3d 642, 644 [2008]). “[V]iolation of Judiciary Law § 487 requires an intent to deceive” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 [2009]) as opposed to conduct which is negligent. Here, the evidentiary material submitted by the defendants in support of their motion, which included, among other things, the motion papers filed in the prior action and excerpts of Lovy’s deposition testimony given in the prior action, was sufficient to demonstrate that the fact as alleged by the plaintiffs—that the defendants knew that certain statements set forth in the Kamisher and Lovy affidavits when submitted in the prior action were false with intent to deceive the court—was not a fact at all (see Shaffer v Gilberg, 125 AD3d at 636; Siskin v Cassar, 122 AD3d 714, 717 [2014]; see generally Guggenheimer v Ginzburg, 43 NY2d at 274-275). The complaint, as amplified by the plaintiffs’ evidentiary submissions in opposition to the defendants’ motion, contained only conclusory allegations, without any factual basis, that the defendants acted to deceive the court when submitting the Kamisher and Lovy affidavits in the prior action (see generally Patel v Gardens at Forest Hills Owners Corp., 181 AD3d 611, 613 [2020]).”

The headline is somewhat misleading.  There may have been deceit, but for Judiciary Law § 487 purposes, the deceit did not take place during a litigation.  Pszeniczny v Horn
2021 NY Slip Op 02553 [193 AD3d 1091] April 28, 2021 Appellate Division, Second Department is the rare case where a complaint survives against an attorney not in actual privity.  That statement, too, is somewhat misleading,  The Court found that there was a “privity-like” relationship.

“”Liability to a third party may attach for negligent misrepresentation where there is ‘(1) an awareness by the maker of the statement that it is to be used for a particular purpose; (2) reliance by a known party on the statement in furtherance of that purpose; and (3) some conduct by the maker of the statement linking it to the relying party and evincing its understanding of that reliance’ ” (Rides Unlimited of N.Y., Inc. v Engineered Energy Solutions, LLC, 184 AD3d 695, 696 [2020], quoting Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 384 [1992]).

Here, the complaint sufficiently pleaded a cause of action to recover damages for negligent misrepresentation. Contrary to the defendant’s contentions, the complaint alleged a privity-like relationship, as it alleged that the defendant knew the plaintiff was relying on the guaranty to enter into the stipulation, delivered the guaranty to the plaintiff, and assured the plaintiff that Serao had signed the guaranty (see Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d at 385; Remediation Capital Funding LLC v Noto, 147 AD3d 469, 469 [2017]; Lyons v Medical Malpractice Ins. Assn., 286 AD2d 711, 711 [2001]). Accordingly, the Supreme Court should have denied those branches of the defendant’s motion which were to dismiss the first and second causes of action.

“ ’The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages. A claim rooted in fraud must be pleaded with the requisite particularity under CPLR 3016 (b)’ ” (Shahid v Ridgewood Bushwick Senior Citizens Council, Inc., 181 AD3d 744, 745 [2020], quoting Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]).

Here, contrary to the defendant’s contention, the complaint adequately pleaded a cause of action to recover damages for fraud, as it alleged, in effect, that the defendant misrepresented to the plaintiff that Serao had signed the guaranty in order to persuade the plaintiff to sign the stipulation, that the defendant knew Serao had not signed the guaranty, and that the plaintiff relied on the guaranty in agreeing to execute the stipulation (see e.g. Minico Ins. Agency, LLC v B&M Cleanup Servs., 165 AD3d 776, 777 [2018]; Fox Paine & Co., LLC v Houston Cas. Co., 153 AD3d 673, 677 [2017]).

Accordingly the Supreme Court properly denied that branch of the defendant’s motion which was to dismiss the third cause of action.

However, the Supreme Court should have granted that branch of the defendant’s motion which was to dismiss the fourth cause of action. “[A] Judiciary Law § 487 cause of action requires that the alleged deceit occurred during a judicial proceeding in which the plaintiff was a party” (Gorbatov v Tsirelman, 155 AD3d 836, 840 [2017]). Here, the complaint failed to allege that the deceit occurred during a judicial proceeding or before any court (see US Suite LLC v Baratta, Baratta & Aidala LLP, 171 AD3d 551 [2019]; Henry v Brenner, 271 AD2d 647, 647-648 [2000]; see also Gorbatov v Tsirelman, 155 AD3d at 840).”

 

Dial Car Inc. v Tuch & Cohen, LLP  2021 NY Slip Op 30407(U) February 10, 2021 Supreme Court, Kings County Docket Number: 514138/20 Judge: Leon Ruchelsman gives a nice description of the current standard of JL § 487 in the Second Department.  This standard is strikingly different from that of the First Department.

“Concerning Judiciary Law §487, it is well settled that to establish such a cause of action the plaintiff must present evidence an attorney acted “with intent to deceive” either the
court or any party (see, Moormann v. Perini Hoerger, 65 AD3d 1106, 886 NYS2d 49 [2d Dept., 2009]). The allegations concerning the deception must be pled with particularity (Betz v. Blatt, 160 AD3d 696, 74 NYS3d 75 [2d Dept., 2018]). Moreover, the cause of action is only applicable if the conduct alleges took place in a proceeding where the plaintiff was a party (Barouh v. Law offices of Jason L. Abelove, 131 AD3d 988, 17 NYS3d 144 [2d Dept., 2015]). First, it must be noted that the Second Department no longer maintains a cause of action pursuant to Judiciary Law §487 based upon an attorney’s egregious, extreme or chronic delinquent activities. Rather, “the only liability standard recognized in Judiciary Law §487 is that of an intent to deceive” (Dupree v. Vorhees, 102 AD3d 912, 959 NYS2d 235 [2d Dept., 2013]). Second, considering the intent to deceive, such intent can hardly be demonstrated. The complaint merely alleges in conclusory fashion that the defendants “have continuously consented to deceit or collusion, with the intent to deceive and harm Dial” (see, Complaint, ¶157) without elaborating upon those allegations. The mere pursuant of the dismissal of the Guzman lawsuit can hardly be considered an intent to deceive the plaintiff. Further, since
that is the only conduct alleged wherein Dial was a party in a pending action all of the other allegations of the complaint cannot sustain a cause of action in this regard. Therefore, the
motion seeking to dismiss the seventh cause of action is granted. “

Vernum v Freyer  2021 NY Slip Op 50120(U) [70 Misc 3d 1218(A)]  Decided on February 11, 2021 Supreme Court, Warren County Muller, J. describes a curious representation and ends with a split decision.

“Defendant is a licensed attorney in New York who focuses her practice primarily on real estate transactions. In May 2017 she was retained by plaintiff, as executrix of the estate of Clay A. Beaudet (hereinafter Clay), to represent her in the sale of two parcels of land located at 9 Rhode Island Avenue and 0 Rhode Island Avenue in the Town of Queensbury, Warren County. 9 Rhode Island Avenue is .14 acres in size and improved by a single-family dwelling. 0 Rhode Island Avenue — which is located immediately adjacent to 9 Rhode Island Avenue — is .21 acres in size and unimproved. At the time of this initial retainer, plaintiff had contracted to sell both parcels of land to DKC Holdings, Inc. (hereinafter DKC). These contracts were subsequently cancelled, however, when certain title issues were discovered and DKC was unwilling to await their resolution.

Specifically, defendant discovered that Clay never held title to 0 Rhode Island Avenue. Both 9 Rhode Island Avenue and 0 Rhode Island Avenue were previously owned by Dorothy Skellie (hereinafter Dorothy) and her husband, Ernest Skellie (hereinafter Ernest), as tenants by the entirety. Ernest died in 1998, leaving his interest in the property to Dorothy, who then married Clay. In 2006, Dorothy executed a warranty deed conveying 9 Rhode Island Avenue from herself to herself and Clay as tenants by the entirety. She did not, however, convey title to 0 Rhode Island Avenue, which she continued to own individually until dying intestate in 2013. [*2]Upon her death, Clay acquired an ownership interest in 0 Rhode Island Avenue as Dorothy’s surviving spouse. Defendant advised that an investigation was necessary, however, to determine whether Dorothy had other heirs who might also have an interest in the property.”

“The Court finds that the documentary evidence succeeds in refuting plaintiff’s first cause of action. It is clear that—until defendant discovered the title issues with respect to 0 Rhode Island Avenue—plaintiff believed the property was owned by her father. Indeed, she paid the property taxes on 0 Rhode Island Avenue in 2016 as the executrix of his estate. It is likewise clear that plaintiff wanted defendant to contact Bernard and in fact assisted defendant in [*3]contacting him to ensure that she could close on the sale of 0 Rhode Island Avenue simultaneous with the sale of 9 Rhode Island Avenue, as intended. In this regard, it bears noting that plaintiff signed the January 2018 sales contract for 0 Rhode Island Avenue as “seller.” At the time of signing, she was aware of the title issues relative to the property and was actively assisting defendant in resolving them. The record thus demonstrates that plaintiff was fully aware of and consented to defendant’s simultaneous representation of her in the sale of 9 Rhode Island Avenue, and her and Bernard in the sale of 0 Rhode Island Avenue.

That being said, the Court declines to find that this documentary evidence refutes plaintiff’s second cause of action. At the outset, it appears that the mortgage was intended to cover 9 Rhode Island Avenue, but erroneously included a description of 0 Rhode Island Avenue. Indeed, the mortgage expressly states that the property covered is improved by a one or two-family residence—and 0 Rhode Island Avenue is unimproved. Further, the mortgagee clearly believed that the mortgage covered 9 Rhode Island Avenue, as it paid the property taxes on 9 Rhode Island Avenue from escrowed funds and included the address of the property in its payoff letter. Finally, a mortgagee would unlikely accept a vacant parcel like 0 Rhode Island Avenue as security for a $62,997.71 loan. The problem, however, is that the mortgage was no longer valid at the time the properties were sold. As such, the mortgage should not have been paid from the proceeds of any sale—be it the sale of 9 Rhode Island Avenue or the sale of 0 Rhode Island Avenue.”

“Having found that defendant established her entitlement to dismissal of the first cause of action based upon documentary evidence, the Court focuses solely upon whether she is entitled to dismissal of the second cause of action on the grounds of failure to state a claim. In this regard, it is impossible to say whether the outcome in the underlying matter would have been more favorable to plaintiff had the mortgage not been paid from the proceeds of sale for 9 Rhode Island Avenue. To the extent that the purchasers were related and their title agent, Maple Abstract, required the mortgage to be paid off and satisfied as a condition to issuance of the title policies,[FN2] it is possible that the sales would have fallen through had defendant not paid the mortgage off. Plaintiff would thus have remained responsible for the properties and their concomitant costs until another buyer came along. If the sales had somehow gone forward notwithstanding plaintiff’s refusal to pay off the mortgage and she had walked away with the $48,162.95, then litigation of some sort surely would have resulted. While it does not appear that Clay’s estate would have born any liability for the amount due and owing under the loan,[FN3] his estate would likely have been named in the litigation—thus resulting in legal fees for [*5]plaintiff.

In any event, mindful that plaintiff must be accorded the benefit of every favorable inference, the Court finds that defendant has failed to establish her entitlement to dismissal of the second cause of action on the grounds of failure to state a cause of action.”