| Uzzle v Nunzie Ct. Homeowners Assn., Inc. |
| 2008 NY Slip Op 07905 [55 AD3d 723] |
| October 14, 2008 |
| Appellate Division, Second Department |
| Damon R. Uzzle, Appellant, v Nunzie Court HomeownersAssociation, Inc., et al., Defendants, and United General Title Insurance Company et al.,Respondents. |
—[*1] DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Jacob E. Amir ofcounsel), for respondents. Kaufman Borgeest & Ryan LLP, New York, N.Y. (Ariel Michael Furman and R. Evon Howardof counsel), for defendant John C. DiGiovanna.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from somuch of an order of the Supreme Court, Richmond County (Gigante, J.), dated May 29, 2007, asgranted the motion of the defendants United General Title Insurance Company and Newell & TalaricoTitle Insurance Agency, Inc., pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint insofaras asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motionof the defendants United General Title Insurance Company and Newell & Talarico Title InsuranceAgency, Inc., pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as assertedagainst them is denied.
The plaintiff retained the defendant John C. DiGiovanna to represent him in a purchase of [*2]real property (hereinafter the premises) located along a private road. Thecontract of sale specified that he would take title to the premises subject to a certain declaration ofcovenants, restrictions, easements, charges, and liens (hereinafter the declaration).
The plaintiff obtained title insurance from the defendant United General Title Insurance Companythrough its agent, the defendant Newell & Talarico Title Insurance Agency, Inc. (hereinafter togetherthe respondents). The policy insured the plaintiff against, among other things, "unmarketability of thetitle" and lack of a right of access to and from the land. However, the policy excepted from coverageloss or damage arising from the declaration.
After the plaintiff closed title on the property, he brought this action asserting, among other things,that he did not have a legal means of access to his property. The respondents moved pursuant to CPLR3211 (a) (1) and (7) to dismiss the complaint insofar as asserted against them.
When determining a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading must beafforded a liberal construction (see CPLR 3026; Leon v Martinez, 84 NY2d 83, 87[1994]), the facts as alleged in the complaint are accepted as true, the plaintiff is accorded the benefit ofevery favorable inference, and the court must determine only whether the facts as alleged fit within anycognizable legal theory (see Leon v Martinez, 84 NY2d at 87-88; Cayuga Partners v 150Grand, 305 AD2d 527 [2003]). "In assessing a motion under CPLR 3211 (a) (7). . . a court may freely consider affidavits submitted by the plaintiff to remedy any defectsin the complaint," and if the court does so, "the criterion is whether the proponent of the pleading has acause of action, not whether he has stated one" (Leon v Martinez, 84 NY2d at 88 [internalquotations marks and citations omitted]).
"A party seeking dismissal on the ground that its defense is founded on documentary evidenceunder CPLR 3211 (a) (1) has the burden of submitting documentary evidence that 'resolves all factualissues as a matter of law, and conclusively disposes of the plaintiff's claim' " (Sullivan v State of New York, 34 AD3d443, 445 [2006], quoting Nevin v Laclede Professional Prods., 273 AD2d 453 [2000];see Leon v Martinez, 84 NY2d at 88).
Construed liberally, the plaintiff's complaint states a valid cause of action against the respondents torecover damages for breach of contract since the title insurance policy explicitly covers losses arisingfrom a lack of legal access to the premises and the plaintiff has asserted that he has incurred damagesdue to the fact that he has no legal right to access the premises (see CPLR 3211 [a] [7];accord L. Smirlock Realty Corp. v Title Guar. Co., 52 NY2d 179, 184 [1981]). Moreover,even though the declaration may be excepted from coverage under the title policy (see Hess vBaccarat, 287 AD2d 834, 836-837 [2001]), the respondents did not provide documentaryevidence that resolves all factual issues (see generally CPLR 3211 [a] [1]; Sullivan v Stateof New York, 34 AD3d at 445).
Given the limited scope of the plaintiff's notice of appeal, the issue of whether the Supreme Courterred in dismissing the causes of action asserted against the defendant John C. DiGiovanna is notproperly before this Court (see CPLR 5515 [1]; Spencer v Crothall Healthcare, Inc., 38 AD3d 527, 528 [2007]; Yannotti v Four Bros. Homes at HeartlandCondominium I, 24 AD3d 659, 660-661 [2005]).
The parties' remaining contentions either have been rendered academic or are without merit.Mastro, J.P., Angiolillo, Carni and Eng, JJ., concur. [See 2007 NY Slip Op 31421(U).]
[Recalled and vacated by 70 AD3d 928.]