| Uzzle v Nunzie Ct. Homeowners Assn., Inc. |
| 2010 NY Slip Op 01476 [70 AD3d 928] |
| February 16, 2010 |
| 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 of counsel), for respondents United General Title Insurance Company and Newell &Talarico Title Insurance Agency, Inc. Kaufman Borgeest & Ryan LLP, New York, N.Y. (Ariel Michael Furman and R. EvonHoward of counsel), for respondent John C. DiGiovanna.
Motion by the plaintiff for leave to reargue an appeal from an order of the Supreme Court,Richmond County (Gigante, J.), dated May 29, 2007, which was determined by decision andorder of this Court dated October 14, 2008.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that the motion is granted and upon reargument, the decision and order of this Courtdated October 14, 2008 (Uzzle v Nunzie Ct. Homeowners Assn., Inc., 55 AD3d 723[2008]), is recalled and vacated, and the following decision and order is substituted therefor:
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals froman order of the Supreme Court, Richmond County (Gigante, J.), dated May 29, 2007, whichgranted the motion of the defendants United General Title Insurance Company and Newell &Talarico Title Insurance Agency, Inc., pursuant to CPLR 3211 (a) (1) and (7) to dismiss thecomplaint insofar as asserted against them, and granted the motion of the defendant John C.DiGiovanna pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted asagainst him. Justice Hall has been substituted for Justice Carni (see 22 NYCRR 670.1[c]).
Ordered that the order is modified, on the law, (1) by deleting the provision thereofgranting the motion of the defendants United General Title Insurance Company and Newell &Talarico Title Insurance Agency, Inc., pursuant to CPLR 3211 (a) (1) and (7) to dismiss thecomplaint insofar as asserted against them and substituting therefor a provision denying thatmotion, and (2) by deleting the provision thereof granting that branch of the motion of thedefendant John C. [*2]DiGiovanna which was pursuant to CPLR3211 (a) (7) to dismiss so much of the complaint as alleged that the defendant John C.DiGiovanna committed legal malpractice, and substituting therefor a provision denying thatbranch of the motion; as so modified, the order is affirmed, with costs payable by the defendantsUnited General Title Insurance Company and Newell & Talarico Title Insurance Agency, Inc., tothe plaintiff.
The plaintiff retained the defendant John C. DiGiovanna to represent him in a purchase ofreal property (hereinafter the premises) located along a private road. The contract of salespecified that he would take title to the premises subject to a certain declaration of covenants,restrictions, easements, charges, and liens (hereinafter the declaration).
The plaintiff obtained title insurance from the defendant United General Title InsuranceCompany through its agent, the defendant Newell & Talarico Title Insurance Agency, Inc.(hereinafter together the title insurance respondents). The policy insured the plaintiff against,among other things, "unmarketability of the title" and lack of a right of access to and from theland. However, the policy excepted from coverage loss or damage arising from the declaration.
After the plaintiff closed title on the property, he brought this action asserting, among otherthings, that he did not have a legal means of access to his property. The title insurancerespondents moved pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint insofar asasserted 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 thebenefit of every favorable inference, and the court must determine only whether the facts asalleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d at 87-88;Cayuga Partners v 150 Grand, 305 AD2d 527 [2003]). "In assessing a motion underCPLR 3211 (a) (7) . . . a court may freely consider affidavits submitted by theplaintiff to remedy any defects in the complaint," and if the court does so, "the criterion iswhether the proponent of the pleading has a cause of action, not whether he has stated one"(Leon v Martinez, 84 NY2d at 88 [internal quotations marks omitted]).
"A party seeking dismissal on the ground that its defense is founded on documentaryevidence under CPLR 3211 (a) (1) has the burden of submitting documentary evidence that'resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim' "(Sullivan v State of New York, 34 AD3d 443, 445 [2006], quoting Nevin v LacledeProfessional Prods., 273 AD2d 453, 453 [2000]; see Leon v Martinez, 84 NY2d at88).
Construed liberally, the plaintiff's complaint states a valid cause of action against the titleinsurance respondents to recover damages for breach of contract since the title insurance policyexplicitly covers losses arising from a lack of legal access to the premises and the plaintiff hasasserted that he has incurred damages due to the fact that he has no legal right to access thepremises (see CPLR 3211 [a] [7]; accord L. Smirlock Realty Corp. v Title Guar.Co., 52 NY2d 179, 184 [1981], appeal upon remand 97 AD2d 208 [1983],mod 63 NY2d 955 [1984]). Moreover, even though the declaration may be excepted fromcoverage under the title policy (see Hess v Baccarat, 287 AD2d 834, 836-837 [2001]),the title insurance respondents did not provide documentary evidence that resolves all factualissues (see generally CPLR 3211 [a] [1]; Sullivan v State of New York, 34AD3d at 445).
The Supreme Court properly granted that branch of DiGiovanna's motion which was todismiss the cause of action to recover damages for breach of contract insofar as asserted againsthim, as that cause of action was duplicative of the legal malpractice cause of action (seeMaiolini v McAdams & Fallon, P.C., 61 AD3d 644, 645 [2009]; Gelfand v Oliver,29 AD3d 736 [2006]; Shivers v Siegel, 11 AD3d 447 [2004]). However, affording thelegal malpractice cause of action a liberal construction and according the plaintiff everyfavorable inference, the complaint does state a cause of action to recover damages for legalmalpractice (see generally Hamoudeh v Mande1, 62 AD3d 948, 949 [2009]; Maioliniv McAdams & Fallon, P.C., 61 AD3d 644, 645 [2009]; Malik v Beal, 54 AD3d 910,911 [2008]).
The parties' remaining contentions either have been rendered academic or are without merit.Mastro, J.P., Angiolillo, Eng and Hall, JJ., concur. [Prior Case History: 2007 NY Slip Op31421(U).]