| Dobroshi v Bank of Am., N.A. |
| 2009 NY Slip Op 06382 [65 AD3d 882] |
| September 8, 2009 |
| Appellate Division, First Department |
| Zana Dobroshi, on Behalf of Herself and All Others SimilarlySituated, Respondent-Appellant, v Bank of America, N.A.,Appellant-Respondent. |
—[*1] Toptani Law Offices, New York (Edward Toptani of counsel), forrespondent-appellant.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered September 24,2008, which, inter alia, granted defendant's motion for partial summary judgment to the extent ofdismissing the second through sixth causes of action, denied the motion to the extent it soughtdismissal of the seventh and eighth causes of action and denied defendant's motion to strike theclass action allegations from the complaint, unanimously modified, on the law, to deny themotion for partial summary judgment as to the second cause of action, to grant the motion forpartial summary judgment dismissing the seventh and eighth causes of action, and to grant themotion to strike the class action allegations, and otherwise affirmed, without costs.
Contrary to defendant's claim, the second cause of action pleads fraud with sufficientparticularity to satisfy CPLR 3016 (b) (see Lanzi v Brooks, 43 NY2d 778, 780 [1977]).It informs defendant that plaintiff complains of the significant increase in settlement costsbetween the good faith estimate of settlement services (GFE) and the HUD-1 statement, and ofthe fact that she was informed about this increase only one day before the closing.
Plaintiff's allegation that defendant deliberately underestimated settlement costs to induceher to obtain a loan from it, rather than from a competing lender states a claim for fraud (see Wright v Selle, 27 AD3d1065, 1067-1068 [2006]). The GFE was not a mere statement of future intent (see Wattsv Jackson Hewitt Tax Serv. Inc., 579 F Supp 2d 334, 352 [ED NY 2008]), and the issue ofmaterial misrepresentation is not subject to summary disposition (see e.g. Brunetti v Musallam, 11 AD3d280, 281 [2004]).
The motion court also noted that plaintiff went forward with the closing despite theincreased costs. However, under the circumstances, that was the only sensible thing for plaintiffto do (see Negrin v Norwest Mtge., 263 AD2d 39, 50 [1999]). Contrary to defendant'scontention, plaintiff's damages are not speculative. She alleges that she was forced to pay $4,000for defendant's attorney's services, that this amount was excessive, that the GFE estimated thatthe attorney's fees would be $450, and that the prevailing customary charge in New York Cityfor the lending bank's attorney's fees ranges from $450 to $800. Furthermore, because the fraudclaim is reinstated, plaintiff's demand for punitive damages is also reinstated, since "[i]t is for thejury to decide whether [defendant's actions] were so reprehensible as to warrant punitive [*2]damages" (Swersky v Dreyer & Traub, 219 AD2d 321, 328[1996]).
The third cause of action (negligent misrepresentation) was correctly dismissed. "[L]iabilityfor negligent misrepresentation has been imposed only on those persons who possess unique orspecialized expertise, or who are in a special position of confidence and trust with the injuredparty such that reliance on the negligent misrepresentation is justified" (Kimmell vSchaefer, 89 NY2d 257, 263 [1996]). This Court has repeatedly held that an arm's lengthborrower-lender relationship is not of a confidential or fiduciary nature and therefore does notsupport a cause of action for negligent misrepresentation (see Korea First Bank of N.Y. v Noah Enters., Ltd., 12 AD3d 321,323 [2004], lv denied 4 NY3d 710 [2005]; River Glen Assoc. v Merrill Lynch CreditCorp., 295 AD2d 274, 275 [2002]; FAB Indus. v BNY Fin. Corp., 252 AD2d 367[1998]; Heller Fin. v Apple Tree Realty Assoc., 238 AD2d 198, 199 [1997], lvdismissed 90 NY2d 889 [1997]; Banque Nationale de Paris v 1567 Broadway OwnershipAssoc., 214 AD2d 359, 360 [1995]). Defendant's alleged superior knowledge of, amongother things, the legal fees typically charged by its counsel does not constitute the "unique orspecial expertise" required to depart from this rule.
For similar reasons, the fourth cause of action (breach of the duty to disclose) was correctlydismissed. Plaintiff has not established that defendant's superior knowledge of essential factsrenders the transaction without disclosure inherently unfair (see generally Swersky v Dreyer& Traub, 219 AD2d at 327-328) and plaintiff's claim of excessive fees fails to overcome therule that the legal relationship between a borrower and a bank is a contractual one and does notgive rise to a fiduciary relationship (see Bank Leumi Trust Co. of N.Y. v Block 3102Corp., 180 AD2d 588, 589 [1992], lv denied 80 NY2d 754 [1992]; TrustcoBank, N.A. v Cannon Bldg. of Troy Assoc., 246 AD2d 797, 799 [1998]).
The fifth cause of action (conversion) was properly dismissed. "Two key elements ofconversion are (1) plaintiff's possessory right or interest in the property and (2) defendant'sdominion over the property or interference with it, in derogation of plaintiff's rights" (Colavito v New York Organ DonorNetwork, Inc., 8 NY3d 43, 50 [2006] [citations omitted]). Here, the motion court didnot dismiss the conversion claim because of plaintiff's failure to satisfy the first element. Rather,it dismissed the claim due to her failure to satisfy the second element.
The sixth cause of action (unjust enrichment) was properly dismissed. It is not sufficient thata defendant is enriched; rather, the enrichment must be unjust (see McGrath v Hilding,41 NY2d 625, 629 [1977]). While the closing costs more than doubled between the GFE and theHUD-1, defendant did not retain this increase.
The record shows that defendant has met its burden of showing that it is entitled to judgmentas a matter of law dismissing the seventh and eighth causes of action alleging negligent trainingand negligent supervision, respectively. Plaintiff has not identified the laws, rules, regulations,and best practices standards that defendant allegedly violated (see Diaz v New YorkDowntown Hosp., 99 NY2d 542, 544-545 [2002]). Further, plaintiff, who has not sued anybank employee, has not shown that defendant knew of any "employee's propensity to commit thetortious act or should have known of such propensity had the defendant conducted an adequatehiring procedure" (N. X. v Cabrini Med. Ctr., 280 AD2d 34, 42 [2001], mod on othergrounds 97 NY2d 247 [2002]) or that defendant's alleged negligent training was theproximate cause of plaintiff's injuries.
The motion court should have stricken the class action allegations. First, individual issueswill predominate because all claims under General Business Law § 349 will require [*3]analysis of whether the ultimate closing costs were so unreasonableas to amount to a deceptive practice (cf. Weil v Long Is. Sav. Bank, FSB, 200 FRD 164,174 [ED NY 2001] [distinguishing a case where each plaintiff would have to provide evidence ofthe services performed compared to a case where the plaintiffs claim that the alleged scheme wasillegal per se]). Moreover, plaintiff contends that defendant's bad faith in making estimates isactionable. However, to determine if defendant acted in bad faith, it will be necessary toindividually examine each of the tens of thousands of transactions at issue. Finally, plaintiff'sproposed class would number in the thousands and would have individually tailored writtendisclosures, different types and amounts of fees and different reasons for the increase in closingcosts. These circumstances negate the possibility that common questions would predominate(see Rose v SLM Fin. Corp., 254 FRD 269, 272-273 [WD NC 2008]).Concur—Andrias, J.P., Moskowitz, DeGrasse and Richter, JJ. [See 2008 NY SlipOp 32583(U).]