| MacDonell v PHH Mtge. Corp. |
| 2007 NY Slip Op 08417 [45 AD3d 537] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Marc MacDonell et al., Appellants-Respondents, v PHHMortgage Corporation, Doing Business as PHH Mortgage Services,Respondent-Appellant. |
—[*1] Lamb & Barnosky, LLP, Melville, N.Y. (Joel M. Markowitz and Weiner Brodsky SidmanKider, P.C. [Mitchell H. Kider and David M. Souders] of counsel), forrespondent-appellant.
In a putative class action, inter alia, to recover damages for violation of Real Property Law§ 274-a, the plaintiffs appeal from so much of an order of the Supreme Court, SuffolkCounty (Emerson, J.), dated January 17, 2006, as granted those branches of the defendant'smotion which were to dismiss the causes of action alleging unjust enrichment, to recover moneyhad and received, and based on conversion, and the defendant cross-appeals from so much of thesame order as denied those branches of its motion which were to dismiss the causes of actionpursuant to Real Property Law § 274-a (2) and General Business Law § 349 (a).
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor disbursements.
The plaintiffs mortgaged their premises to the defendant mortgage company. In anticipationof the sale of the premises, they requested a payoff statement from the defendant. A payoffstatement forwarded to them shortly before the scheduled sale of the premises included a $40 feedesignated "unpaid other fees." It is undisputed that these "unpaid other fees" were, in fact, fees[*2]charged for faxing the payoff statements to the plaintiffs. Theplaintiffs conveyed title to the premises and paid these fees. Shortly thereafter, the plaintiffscommenced an action against the defendant on behalf of themselves and all of those similarlysituated. The complaint alleged that the defendant violated Real Property Law § 274-a (2),which states, in pertinent part, that the "mortgagee shall not charge for providing themortgage-related documents, provided, however, the mortgagee may charge not more thantwenty dollars, or such amount as may be fixed by the banking board, for each subsequent payoffstatement provided under this subdivision." The complaint further alleged that in charging suchfees, the defendant engaged in acts of consumer fraud in violation of General Business Law§ 349. The complaint also alleged causes of action to recover damages for unjustenrichment, money had and received, and conversion. The defendant moved pursuant to CPLR3211 (a) (7) to dismiss the complaint.
On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7), the court must acceptas true the factual allegations of the complaint and accord the plaintiff all favorable inferenceswhich may be drawn therefrom (see Leon v Martinez, 84 NY2d 83, 87-88 [1994];Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Marchionni v Drexler, 22 AD3d814 [2005]). If the plaintiff can succeed upon any reasonable view of the allegations, thecomplaint may not be dismissed (see Marchionni v Drexler, 22 AD3d at 814; Boardof Educ. of City School Dist. of City of New Rochelle v County of Westchester, 282 AD2d561, 562 [2001]).
The Supreme Court properly determined that the complaint stated viable causes of action forviolation of Real Property Law § 274-a (2) and General Business Law § 349 (a).This Court has determined that the voluntary payment doctrine will not bar such statutory causesof action (see Dowd v Alliance Mtge.Co., 32 AD3d 894 [2006]; Dougherty v North Fork Bank, 301 AD2d 491[2003]; see generally Negrin v Norwest Mtge., 263 AD2d 39 [1999]). The SupremeCourt also properly determined, however, that the voluntary payment doctrine does bar theplaintiffs' common-law causes of action alleging unjust enrichment, money had and received, andconversion. To the extent that our decision in Dowd v Alliance Mtge. Co.(supra), holdsto the contrary, it should not be followed (see generally Dillon v U-A Columbia Cablevisionof Westchester, 100 NY2d 525 [2003]).
The defendant's remaining contentions are without merit. Schmidt, J.P., Angiolillo, andMcCarthy, JJ., concur.
Goldstein, J. (concurring in the result): Since the plaintiffs allege a violation of Real PropertyLaw § 274-a, I must agree that "[n]either the assertions that the plaintiff voluntarily agreedto pay those fees nor the absence of allegations of a written demand for the payoff statementconstitutes a defense" (Dowd v AllianceMtge. Co., 32 AD3d 894, 895-896 [2006]) to the plaintiffs' causes of action alleging aviolation of Real Property Law § 274-a and General Business Law § 349 (a), onconstraint of Negrin v Norwest Mtge. (263 AD2d 39 [1999]) and its progeny. The rulingsin those cases are based upon a judicial construction of Real Property Law § 274-a, not thestatutory language itself (see Negrin v Norwest Mtge., supra). It should also be noted thatthe rulings in those cases are sui generis to cases alleging a violation of Real Property Law§ 274-a (see Morales v CopyRight, Inc., 28 AD3d 440 [2006]).