| Wells Fargo Bank, N.A. v Wine |
| 2011 NY Slip Op 08880 [90 AD3d 1216] |
| December 8, 2011 |
| Appellate Division, Third Department |
| Wells Fargo Bank, N.A., Respondent, v Susan L. Wine, Defendantand Third-Party Plaintiff-Appellant, and Robert Ransom, Appellant, et al., Defendants. Frank G.Reiss Appraisals, Inc., et al., Third-Party Defendants-Respondents, et al., Third-PartyDefendants. |
—[*1] Robert Ransom, New Paltz, appellant pro se. Knuckles, Komosinski & Elliot, Elmsford (Fincey John of counsel), for respondent. L'Abbate, Balkan, Colavita & Contini, L.L.P., Garden City (Diane P. Whitfield of counsel),for Frank G. Reiss Appraisals, Inc., third-party defendant-respondent. Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Karla Williams Buettner of counsel),for Commonwealth Land Title Insurance Company, third-party defendant-respondant.
Malone Jr., J. Appeal from an order of the Supreme Court (Melkonian, J.), entered August 6,2010 in Ulster County, which, among other things, denied defendant Susan L. Wine's motion todismiss the complaint.
Upon defendant Susan L. Wine's alleged default on a mortgage executed in 2007, plaintiffcommenced this foreclosure action. Wine moved to dismiss the complaint on the basis thatplaintiff lacked standing, and she commenced a third-party action against, among others,third-party defendants Frank G. Reiss Appraisals, Inc. (hereinafter Reiss) and CommonwealthLand Title Insurance Company, asserting a claim of fraudulent misrepresentation and violationsof the Racketeer Influenced and Corrupt Organizations Act (see 18 USC §§1961-1968 [hereinafter RICO]), among other things. Reiss and Commonwealth each moved todismiss the third-party complaint against them. Thereafter, Robert Ransom, Wine's husband andan unnamed defendant,[FN*]attempted to serve his own answer on plaintiff. When plaintiff rejected his answer as untimely,Ransom moved to compel plaintiff to accept it. Ultimately, Supreme Court denied Wine's motionto dismiss the complaint, granted the motions of Reiss and Commonwealth to dismiss thethird-party complaint against them and denied Ransom's motion to compel plaintiff to accept hisanswer. Ransom and Wine now appeal and we affirm.
" 'In a mortgage foreclosure action, a plaintiff has standing where it is both the holder orassignee of the subject mortgage and the holder or assignee of the underlying note at the time theaction is commenced' " (CitiMortgage,Inc. v Rosenthal, 88 AD3d 759, 760 [2011], quoting Bank of N.Y. v Silverberg, 86 AD3d 274, 279 [2011]; see Wells Fargo Bank, N.A. vMarchione, 69 AD3d 204, 207-210 [2009]). Here, plaintiff produced adequatedocumentation demonstrating that it owned the note and mortgage at the time this action wascommenced. Although Wine produced evidence that plaintiff had assigned the mortgage to athird party, that assignment took effect subsequent to the commencement of this foreclosureaction and did not affect plaintiff's standing (see CPLR 1018).
Supreme Court properly granted Commonwealth's motion to dismiss the third-partycomplaint against it for lack of personal jurisdiction because Wine failed to effectuate properservice of process. Although Wine mailed—via certified mail—a summons andcomplaint to Commonwealth at its Florida office, the record contains no evidence of a signedacknowledgment of receipt of such (see CPLR 312-a [a]; Klein v Educational Loan Servicing,LLC, 71 AD3d 957, 958 [2010]).[*2]
Supreme Court also properly granted Reiss's motion todismiss the third-party complaint against it for failure to state a cause of action (seeCPLR 3211 [a] [7]). Initially, an appraisal cannot form the basis of a fraudulentmisrepresentation claim because an appraisal is merely an opinion and, as here, the appraiser hasno direct relationship with the putative plaintiff (see Mandarin Trading Ltd. v Wildenstein, 65 AD3d 448, 450[2009], affd 16 NY3d 173 [2011]). In any event, Wine's claims of fraudulentmisrepresentation against Reiss consist of nothing more than general allegations of fraudulentservices and, thus, do not provide the detailed and specific factual allegations of fraudulentconduct necessary to sustain such claims (see CPLR 3013, 3016 [b]; see also Introna v Huntington LearningCtrs., Inc., 78 AD3d 896, 898 [2010]). Wine's RICO cause of action against Reiss waslikewise properly dismissed inasmuch as she does not plead a pattern of racketeering activity(see 18 USC § 1961 [5]; Becher v Feller, 64 AD3d 672, 677 [2009]) but, rather, herallegations revolve around a one-time transaction consisting of an allegedly inaccurate appraisal.Finally, the court properly dismissed Wine's conspiracy cause of action against Reiss becauseNew York does not recognize civil conspiracy to commit a tort as an independent cause of action(see Dune Deck Owners Corp. vLiggett, 85 AD3d 1093, 1096 [2011]; Heslin v Metropolitan Life Ins. Co., 287AD2d 113, 115 [2001]).
As for Ransom's motion, it was within Supreme Court's discretion to compel plaintiff toaccept Ransom's untimely pleading upon his showing of a reasonable excuse for his delay(see CPLR 3012 [d]). Here, Ransom conceded that he defaulted in answering thesummons and complaint and offered only unsubstantiated claims that he had been granted anextension of time to answer. However, the record establishes that only Wine had been grantedany such extension. In light of the absence of a reasonable excuse for Ransom's delay, it cannotbe said that the court abused its discretion in denying his motion (see Lipp v Port Auth. of N.Y. & N.J.,34 AD3d 649, 649-650 [2006]).
To the extent that they are properly before this Court, the remaining contentions of Wine andRansom have been considered and found to be without merit.
Mercure, A.P.J., Lahtinen and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The complaint lists "John Doe"as a defendant, describing "John Doe" as "any and all occupants of premises being foreclosedherein." Ransom conceded that this provided him with sufficient notice that he was an intendeddefendant (see Olmsted v Pizza Hut ofAm., Inc., 28 AD3d 855, 856 [2006]).