| Mathurin v Lost & Found Recovery, LLC |
| 2009 NY Slip Op 06240 [65 AD3d 617] |
| August 18, 2009 |
| Appellate Division, Second Department |
| Paulina Mathurin, Respondent, v Lost & Found Recovery,LLC, et al., Defendants, and Greenpoint Mortgage Funding, Inc., et al.,Appellants. |
—[*1] David M. Harrison, Brooklyn, N.Y., for respondent.
In an action, inter alia, to rescind a mortgage note and to recover damages for negligence andgross negligence, the defendants Greenpoint Mortgage Funding, Inc., and Mortgage ElectronicRegistration Systems, Inc., appeal from an order of the Supreme Court, Kings County (Jacobson,J.), dated February 18, 2008, which denied their motion pursuant to CPLR 3211 (a) (7) todismiss the eighth cause of action and the fifth and ninth causes of action insofar as assertedagainst them.
Ordered that the order is modified, on the law, by deleting the provision thereof denyingthose branches of the motion of the defendants Greenpoint Mortgage Funding, Inc., andMortgage Electronic Registration Systems, Inc., which were to dismiss the eighth cause of actionand the ninth cause of action insofar as asserted against them, and substituting therefor aprovision granting those branches of the motion; as so modified, the order is affirmed, withoutcosts or disbursements.
Contrary to the plaintiff's contentions, the defendants Greenpoint Mortgage Funding, Inc.,and Mortgage Electronic Registration Systems, Inc. (hereinafter the appellants), did not owe hera duty, in effect, to prevent the defendants Lost & Found Recovery, LLC (hereinafter Lost &Found), Maurice McDowall, and Dumo Opuiyo from inducing her into entering into a fraudulentmortgage transaction pursuant to which they allegedly effected the transfer of real propertyowned by the plaintiff to Opuiyo under the guise of helping the plaintiff to refinance hermortgage (see Harris v Adejumo,36 AD3d 855, 856 [2007]; Burgerv Singh, 28 AD3d 695, 697 [2006]; Tenenbaum v Gibbs, 27 AD3d 722, 723 [2006]; Beckford vNortheastern Mtge. Inv. Corp., 262 AD2d 436, 437 [1999]; Chemical Bank vBowers, 228 AD2d 407, 408 [1996]). Thus, the Supreme Court should have granted thosebranches of the appellants' motion which were to dismiss the eighth cause of action, sounding innegligence, and the ninth cause of action insofar as asserted against them, sounding in grossnegligence.
However, the Supreme Court properly denied that branch of the appellants' motion whichwas to dismiss the fifth cause of action insofar as asserted against them. "On a CPLR 3211 [*2]motion to dismiss, the court will 'accept the facts as alleged in thecomplaint as true, accord plaintiffs the benefit of every possible favorable inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory' " (Nonnon v City of New York, 9 NY3d825, 827 [2007], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]). "Whileaffidavits may be considered, if," as here, "the motion has not been converted to a CPLR 3212motion for summary judgment, they are generally intended to remedy pleading defects and not tooffer evidentiary support for properly pleaded claims" (Nonnon v City of New York, 9NY3d at 827).
"A bona fide purchaser or encumbrancer for value is protected in its title unless it hadprevious notice of the fraudulent intent of its immediate grantor" (Fleming-Jackson v Fleming, 41 AD3d175, 176 [2007]; see Real Property Law § 266; Fischer v Sadov Realty Corp., 34AD3d 630, 631 [2006]; Karan vHoskins, 22 AD3d 638, 638 [2005]). While the allegations in the fifth cause of action ofthe plaintiff's amended complaint were not alone sufficient to state a cause of action against theappellants, in an affidavit in opposition to the motion to dismiss the plaintiff alleged, inter alia,that the appellants were on notice of facts "that would lead a reasonable, prudent lender to makeinquiries of the circumstances of the transaction at issue" and that should have alerted them tothe fraud allegedly being perpetrated by the defendants Lost & Found, McDowall, and Opuiyo(LaSalle Bank Natl. Assn. v Ally,39 AD3d 597, 600 [2007]; see Fischer v Sadov Realty Corp., 34 AD3d at 631; cf. Merritt v Merritt, 47 AD3d689, 689 [2008]; Fleming-Jackson v Fleming, 41 AD3d at 176). Therefore, theamended complaint, supplemented by the plaintiff's affidavit, stated a cause of action against theappellants. Accordingly, the Supreme Court properly denied that branch of the appellants'motion which was to dismiss the fifth cause of action insofar as asserted against them. Fisher,J.P., Florio, Covello and Dickerson, JJ., concur. [See 19 Misc 3d 756.]