| McMorrow v Dime Sav. Bank of Williamsburgh |
| 2008 NY Slip Op 01512 [48 AD3d 646] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Charles F. McMorrow, Appellant, v Dime Savings Bank ofWilliamsburgh et al., Defendants, and Sanders, Gutman & Brodie, P.C., et al.,Respondents. |
—[*1] Kaufman Borgeest & Ryan LLP, New York, N.Y. (Joshua B. Sandberg and A. MichaelFurman of counsel), for respondents.
In an action, inter alia, to recover damages for fraud, the plaintiff appeals from so much of anorder of the Supreme Court, Kings County (D. Schmidt, J.), dated September 27, 2006, asgranted that branch of the motion of the defendants Sanders, Gutman & Brodie, P.C., and JordanBrodie which was to dismiss the complaint insofar as asserted against them pursuant to CPLR3211 (a) (1).
Ordered that the order is affirmed insofar as appealed from, with costs.
Following the plaintiff's default in paying the mortgage on his Brooklyn property, thedefendant Dime Savings Bank of Williamsburgh (hereinafter Dime) successfully commenced amortgage foreclosure action against him. The plaintiff eventually paid off the amounts owed byselling the premises to a third party. Claiming that he overpaid certain penalty interest andcounsel fees, the plaintiff thereafter commenced the instant action alleging, inter alia, fraud andextortion against Dime and the law firm which prosecuted the foreclosure action, the defendantSanders, Gutman & Brodie, P.C., and a partner, the defendant Jordan Brodie (hereinaftercollectively SG & B). The Supreme Court granted that branch of the motion of SG & B whichwas to dismiss the complaint insofar as asserted against SG & B, and this appeal ensued. Weaffirm.
A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) "may be appropriatelygranted [*2]only where the documentary evidence utterly refutesplaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshenv Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon v Mart�nez, 84NY2d 83, 88 [1994]; Kalmon Dolgin Affiliates of Long Is. v Robert Plan Corp., 248AD2d 594 [1998]). The elements of a cause of action alleging fraud are "a representation of fact,which is either untrue and known to be untrue or recklessly made, and which is offered todeceive the other party and to induce them to act upon it, causing injury" (Jo Ann Homes atBellmore v Dworetz, 25 NY2d 112, 119 [1969]; see Small v Lorillard Tobacco Co.,94 NY2d 43, 57 [1999]; Lama Holding Co. v Smith Barney, 88 NY2d 413, 421[1996]; Brannigan v Board of Educ. ofLevittown Union Free School Dist., 18 AD3d 787, 788 [2005]). Moreover, the plaintiffmust show not only that he or she actually relied on the misrepresentation, but also that suchreliance was reasonable (see Orlando vKukielka, 40 AD3d 829, 831 [2007]; Dong Sheng Lu v Equitable Co., 6 AD3d 650, 651 [2004];Stuart Silver Assoc. v Baco Dev. Corp., 245 AD2d 96, 98 [1997]).
Applying the instant principles to the case at bar, the Supreme Court properly granted thatbranch of SG & B's motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaintinsofar as asserted against it. The plaintiff's reliance, inter alia, on alleged omissions of fact bySG & B about the mortgage payoff amount and prepayment penalties was unreasonable in lightof the clear, documented written provision in the mortgage agreement stating the penalties for theprepayment of the mortgage and a default (see Ozelkan v Tyree Bros. Envtl. Servs., Inc., 29 AD3d 877, 879[2006]; Old Clinton Corp. v 502 OldCountry Rd., 5 AD3d 363, 365 [2004]). Any alleged oral misrepresentations to thecontrary do not call for a different result (see Oko v Walsh, 28 AD3d 529 [2006]; Sulaiman Corp. vAsian Am. Food Corp., 285 AD2d 499 [2001]). Accordingly, the Supreme Court properlydetermined that documentary evidence belied the plaintiff's cause of action to recover damagesfor fraud against SG & B.
The plaintiff's remaining contentions are without merit. Mastro, J.P., Fisher, Dillon andMcCarthy, JJ., concur.