| Morales v AMS Mtge. Servs., Inc. |
| 2010 NY Slip Op 00234 [69 AD3d 691] |
| January 12, 2010 |
| Appellate Division, Second Department |
| Manuel Morales, Respondent, v AMS Mortgage Services,Inc., et al., Defendants, and Lehman Brothers Bank, FSB, Appellant. |
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In an action, inter alia, to recover damages for fraud and deceptive business practices, thedefendant Lehman Brothers Bank, FSB, appeals from so much of an order of the Supreme Court,Queens County (Agate, J.) dated December 16, 2008, as denied those branches of its motionwhich were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the plaintiff's causes of actionalleging fraud and violations of General Business Law § 349 insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the appellant's motion which were pursuant to CPLR 3211 (a) (1) and (7) to dismissthe causes of action alleging fraud and violations of General Business Law § 349 insofaras asserted against it are granted.
In 2008 the plaintiff commenced the instant action against his mortgage brokers, thedefendants AMS Mortgage Services, Inc., and Ivan Galeano, and his mortgagee, the defendantLehman Brothers Bank, FSB (hereinafter Lehman), asserting several causes of action based onthe common grounds that the defendants had made misrepresentations and committed fraud in a$655,500 mortgage loan transaction one year earlier. Prior to answering the complaint, Lehmanmoved pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as assertedagainst it. In the order appealed from, the Supreme Court granted those branches of the motionwhich were to dismiss several of the causes of action insofar as asserted against Lehman, butdenied those branches of the motion which were to dismiss the causes of action alleging fraudand violations of General Business Law § 349 insofar as asserted against Lehman. Wereverse the order insofar as appealed from.
"On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, the court must afford the pleading a liberal construction, accept all facts asalleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54AD3d 703, 703-704 [2008]; seeNonnon v City of New York, 9 NY3d 825, 827 [2007]; Leon v Martinez, 84NY2d 83, 87 [1994]; Smith v MeridianTech., Inc., 52 AD3d 685, 686 [2008]). "On a motion to dismiss based upondocumentary evidence [under CPLR 3211 (a) (1)], dismissal is only warranted if thedocumentary evidence submitted conclusively establishes a defense to the asserted claims as amatter of law" (Klein v Gutman, 12AD3d 417, 418 [2004]; see CPLR 3211 [a] [1]; Goshen v Mutual Life Ins. Co.of N.Y., 98 NY2d 314, 326 [2002]; Ballas v Virgin Media, Inc., 60 AD3d 712, 713 [2009]; McMorrow v Dime Sav. Bank ofWilliamsburgh, 48 AD3d 646, 647 [2008]).[*2]
As Lehman correctly contends, the plaintiff failed to statea cause of action to recover damages for common-law fraud. "To make out a prima facie case offraud, the complaint must contain allegations of a representation of material fact, falsity,scienter, reliance and injury" (Small v Lorillard Tobacco Co., 94 NY2d 43, 57 [1999]; see Oko v Walsh, 28 AD3d 529[2006]; Glassman v Zoref, 291 AD2d 430, 431 [2002]). CPLR 3016 (b) further requiresthat the circumstances of the fraud must be "stated in detail," including specific dates and items(see McGovern v Nassau County Dept.of Social Servs., 60 AD3d 1016 [2009]; see also Sargiss v Magarelli, 12 NY3d 527 [2009]; Dumas v Fiorito, 13 AD3d 332,333 [2004]).
In his complaint, the plaintiff alleges, inter alia, that his income was improperly misstated inhis loan applications and that the indebtedness terms were not disclosed by the defendants inconnection with the $655,500 mortgage loans made by Lehman, although, as the documentaryevidence undisputedly demonstrates, the plaintiff signed the loan applications himself, separatelycertified them as accurate, and was provided with numerous documents explaining the natureand terms of the mortgages, including good faith estimates of closing costs and truth-in-lendingdisclosures. The plaintiff failed to allege or provide dates or details of any misstatements ormisrepresentations made specifically by Lehman's representatives to him, as required by CPLR3016 (b), or allude to any damages sustained by him (see Small v Lorillard Tobacco Co.,94 NY2d at 57; Oko v Walsh, 28 AD3d at 529; Terrano v Fine, 17 AD3d 449 [2005]).
The cause of action to recover damages for violations of General Business Law § 349also should have been dismissed. The documentary evidence conclusively establishes defenses tothe claims that Lehman engaged in material deceptive acts which caused injury to the plaintiff(see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Ballas v Virgin Media,Inc., 60 AD3d at 713; Gale vInternational Bus. Machines Corp., 9 AD3d 446, 447 [2004]; Andre Strishak &Assoc. v Hewlett Packard Co., 300 AD2d 608, 609 [2002]). Mastro, J.P., Balkin, Belen andChambers, JJ., concur.