| Surace v Commonwealth Land Tit. Ins. Co. |
| 2009 NY Slip Op 04050 [62 AD3d 861] |
| May 19, 2009 |
| Appellate Division, Second Department |
| Steve Surace, Sr., et al., Respondents, v CommonwealthLand Title Insurance Company, Appellant. |
—[*1] Howard M. File, Staten Island, N.Y., for respondents.
In an action, inter alia, to recover damages for breach of a title insurance policy and thenegligent failure to timely record a mortgage, the defendant appeals, as limited by its brief, fromstated portions of an order of the Supreme Court, Richmond County (Maltese, J.), dated June 25,2008, which, inter alia, denied its motion to dismiss the complaint pursuant to CPLR 3211 (a) (1)and (7) and for summary judgment dismissing the complaint pursuant to CPLR 3212.
Ordered that the order is affirmed insofar as appealed from, with costs, and, upon searchingthe record, summary judgment is awarded to the plaintiffs on the issue of liability.
On April 5, 2005 the plaintiffs obtained a mortgage interest in real property in the principalsum of $360,000. The plaintiffs obtained title insurance from the defendant. The defendant didnot submit the mortgage document for recording until January 30, 2006. In the interim, on July14, 2005 a second mortgage was taken out on the property. This second mortgage was recordedon August 1, 2005. Thus, the second mortgage was recorded before the first mortgage held bythe plaintiffs, and became the first lien on the property. The plaintiffs commenced this action,alleging, inter alia, a breach of the title insurance policy and the negligent failure to timelyrecord the mortgage.
To prevail on that branch of its motion which was to dismiss the complaint pursuant toCPLR 3211 (a) (1), the defendant was required to demonstrate that "the documentary evidenceutterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter oflaw" (Goshen v [*2]Mutual Life Ins. Co. of N.Y., 98NY2d 314, 326 [2002]). Insofar as the defendant's motion is predicated upon CPLR 3211 (a) (7),the court is required to "accept the facts as alleged in the complaint as true, accord plaintiffs thebenefit of every possible favorable inference, and determine only whether the facts as alleged fitwithin any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
The complaint states a valid cause of action alleging a breach of the title insurance policy.The complaint also states a valid cause of action alleging negligence, which is independent of theparties' contract of insurance (see GemServs. of N.Y., Inc. v United Gen. Tit. Ins. Co., 28 AD3d 516 [2006]; Cruz vCommonwealth Land Tit. Ins. Co., 157 AD2d 333 [1990]). Moreover, contrary to thearguments of the defendant, the documentary evidence failed to refute the plaintiffs' allegations.
The Supreme Court also properly denied that branch of the defendant's motion which was forsummary judgment dismissing the complaint pursuant to CPLR 3212 because the defendantfailed to make a prima facie showing of its entitlement to judgment as a matter of law (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
This Court has the authority to search the record and award summary judgment to anonappealing party with respect to an issue that was the subject of a motion before the SupremeCourt (see Garcia v Lopez, 59AD3d 593 [2009]; cf. Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]).Here, the plaintiffs cross-moved for summary judgment on the issue of liability, and thedefendant submitted opposition thereto. Upon searching the record, we find that the plaintiffsmade a prima facie showing of entitlement to summary judgment on the issue of liability byproducing evidence, on their cross motion, that the defendant breached the title insurance policyand was negligent in failing to record the plaintiffs' mortgage in a timely manner. In opposition,the defendant failed to raise a triable issue of fact. Accordingly, the plaintiffs are entitled tosummary judgment on the issue of liability (see CPLR 3212 [b]).
The defendant's contention that the Supreme Court erred in directing it to pay to theplaintiffs' attorney the sum of $94,622.35 to be held in escrow pending the completion of thismatter has been rendered academic. In an order dated August 29, 2008, the Supreme Court, interalia, amended the order appealed from to delete such provision, upon the stipulation of theparties.
The defendant's remaining contentions are without merit. Rivera, J.P., Spolzino, Angiolilloand Balkin, JJ., concur.