| Dickinson v Igoni |
| 2010 NY Slip Op 06565 [76 AD3d 943] |
| September 14, 2010 |
| Appellate Division, Second Department |
| Doris Faye Dickinson, Respondent, v Joy Igoni et al.,Respondents, and McNamara & Zeh, P.C., Appellant, et al.,Defendants. |
—[*1] Brooklyn Legal Services Corp. A., Brooklyn, N.Y. (Richard J. Wagner of counsel), forplaintiff-respondent. DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Lee S.Wiederkehr and Michael J. Schwarz of counsel), for defendants-respondents.
In an action, inter alia, to quiet title pursuant to RPAPL 1501 and to recover damages foraiding and abetting conversion, the defendant McNamara & Zeh, P.C., appeals from an order ofthe Supreme Court, Kings County (Schmidt, J.), dated December 5, 2008, which (1) denied thatbranch of its motion which was pursuant to CPLR 3211 (a) (7) and CPLR 3016 (b) to dismiss theamended complaint insofar as asserted against it, (2) denied that branch of its motion which waspursuant to CPLR 3211 (a) (7) to, in effect, dismiss the cross claims of the defendants PremiumCapital Funding, LLC, doing business as TopDot Mortgage, and Countrywide Bank FSB, insofaras asserted against it for contribution and/or indemnification, and (3) granted the cross motion ofthe defendants Joy Igoni, Premium Capital Funding, LLC, doing business as TopDot Mortgage,and Countrywide Bank, FSB, for leave to amend their answer to assert cross claims on behalf ofthe defendants Premium Capital Funding, LLC, doing business as TopDot Mortgage, andCountrywide Bank, FSB, against it alleging breach of fiduciary duty.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthat branch of the motion of the defendant McNamara & Zeh, P.C., which was to dismiss theamended complaint insofar as asserted against it and substituting therefor a provision grantingthat branch of the motion, and (2) by adding thereto a provision converting the cross claims ofthe defendants Premium Capital Funding, LLC, doing business as TopDot Mortgage, andCountrywide Bank FSB, asserted against the defendant McNamara & Zeh, P.C., into a third-partyaction; as so modified, the order is affirmed, with one bill of costs to the defendant McNamara &Zeh, P.C., payable by the plaintiff, and one bill of costs to the defendants Premium CapitalFunding, [*2]LLC, doing business as TopDot Mortgage, andCountrywide Bank FSB, payable by the defendant McNamara & Zeh, P.C.
The plaintiff owned property located at 1137 Blake Avenue in Brooklyn (hereinafter theproperty) since July 1982. An allegedly forged deed was recorded on October 22, 2002, in theoffice of the City Register for Kings County transferring title of the property from Louis Johnsonand Matthew Smith, claiming to be the sole heirs of the plaintiff, to the defendant 1137 BlakeAve., LLC (hereinafter the LLC). The plaintiff alleges that she never conveyed title of theproperty to Johnson or Smith.
Thereafter, on or about July 30, 2007, the LLC conveyed title to the property to the defendantJoy Igoni for the purchase price of $600,000. The defendant McNamara & Zeh, P.C. (hereinafterM&Z), acted as the settlement agent on behalf of the defendant Premium Capital Funding, LLC,doing business as TopDot Mortgage (hereinafter Premium), which provided two loans to Igoni topurchase the property, totaling $570,000, secured by two mortgages. Premium assigned itsinterest in one of the mortgages in the sum of $480,000 to the defendant Countrywide Bank FSB(hereinafter Countrywide) in March 2008.
The plaintiff commenced this action seeking, among other relief, to quiet title to the propertyin her name and to recover damages for aiding and abetting a conversion of equity in her realproperty. Igoni, Premium, and Countrywide filed an answer to an amended complaint includingcross claims asserted against M&Z for contribution and/or indemnification. Subsequently, M&Zmoved to dismiss the amended complaint insofar as asserted against it, inter alia, pursuant toCPLR 3211 (a) (7) for failure to state a cause of action and also pursuant to CPLR 3211 (a) (7) todismiss the cross claims asserted by Igoni, Premium, and Countrywide against it for failure tostate a cause of action. Thereafter, Igoni, Premium, and Countrywide cross-moved for leave toamend their answer to add cross claims alleging breach of fiduciary duty on behalf of Premiumand Countrywide against M&Z. Igoni withdrew her cross claim against M&Z for contributionand/or indemnification. The Supreme Court denied M&Z's motion to dismiss in its entirety andgranted the cross motion of Igoni, Premium, and Countrywide.
"In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the facts pleaded arepresumed to be true, and the court must afford those allegations every favorable inference anddetermine only whether the facts as alleged fit within any cognizable legal theory" (Sitar v Sitar, 50 AD3d 667, 669[2008]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Hallman v Kantor, 72 AD3d 895[2010]; Pacific Carlton Dev. Corp. v752 Pac., LLC, 62 AD3d 677, 679 [2009]; Dinerman v Jewish Bd. of Family & Children's Servs., Inc., 55 AD3d530 [2008]).
The plaintiff contends that the only cause of action asserted against M&Z in the amendedcomplaint was one to recover damages for aiding and abetting conversion of equity in her realproperty. "A conversion takes place when someone, intentionally and without authority, assumesor exercises control over personal property belonging to someone else, interfering with thatperson's right of possession" (Colavito vNew York Organ Donor Network, Inc., 8 NY3d 43, 49-50 [2006]; see State of NewYork v Seventh Regiment Fund, 98 NY2d 249, 259 [2002]). "New York law permits a claimfor aiding and abetting conversion" (Dangerfield v Merrill Lynch, Pierce, Fenner & Smith,Inc., 2006 WL 335357, *5, 2006 NY US Dist LEXIS 7761, *17 [2006]; see Sheroff v Dreyfus Corp., 50 AD3d877, 878 [2008]). However, New York does not recognize civil conspiracy to commit a tort,including conversion, as an independent cause of action (see Hebrew Inst. for Deaf & Exceptional Children v Kahana, 57 AD3d734, 735 [2008]; Salvatore vKumar, 45 AD3d 560, 563 [2007]). Accordingly, a claim alleging conspiracy to commita tort stands or falls with the underlying tort (see Hebrew Inst. for Deaf & ExceptionalChildren v Kahana, 57 AD3d at 735).
The Supreme Court erred in denying that branch of M&Z's motion which was to dismiss theamended complaint insofar as asserted against it. The plaintiff failed to plead a valid cause ofaction sounding in conversion since "[a]n action sounding in conversion does not lie where theproperty involved is real property" (Garelick v Carmel, 141 AD2d 501, 502 [1988]; see Seidman v Industrial Recycling Props.,Inc., 71 AD3d 1117 [2010]; Boll v Town of Kinderhook, 99 AD2d 898, 899[1984]). [*3]Accordingly, the cause of action asserted againstM&Z for aiding and abetting conversion of equity in real property must be dismissed since "sucha claim stands or falls with the underlying tort" (Hebrew Inst. for Deaf & ExceptionalChildren v Kahana, 57 AD3d at 735; Salvatore v Kumar, 45 AD3d at 563).
The Supreme Court properly denied that branch of M&Z's motion which was, in effect, todismiss the cross claims asserted by Premium and Countrywide against it for contribution and/orindemnification. Accepting the allegations of the cross claims as true and according Premiumand Countywide the benefit of every favorable inference to be drawn therefrom (see Leon vMartinez, 84 NY2d at 87-88), they adequately pleaded cross claims for contribution andindemnity (see Heffner v Star Farm Assoc., 304 AD2d 525 [2003]; Power TestPetroleum Distribs. v Northville Indus. Corp., 114 AD2d 405, 406 [1985]).
Furthermore, the Supreme Court providently exercised its discretion in granting Igoni,Premium, and Countrywide leave to amend their answer to add cross claims on behalf ofPremium and Countrywide against M&Z to recover damages for breach of fiduciary duty. Leaveto amend a pleading shall be freely given (see CPLR 3025 [b]), and the decision whetherto grant such leave is generally left to the sound discretion of the Supreme Court (seeEdenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]). The newly-assertedcross claims were not "palpably insufficient or patently devoid of merit" (Lucido v Mancuso, 49 AD3d 220,222 [2008]; see DeMato v Mallin,68 AD3d 711, 712 [2009]), and the proposed amendment would not cause prejudice orsurprise (see Board of Mgrs. of ParkRegent Condominium v Park Regent Assoc., 71 AD3d 1070, 1071 [2010]). Rivera, J.P.,Covello, Balkin and Hall, JJ., concur.