| Scott v Fields |
| 2011 NY Slip Op 05043 [85 AD3d 756] |
| June 7, 2011 |
| Appellate Division, Second Department |
| Grace Marjorie Scott, Appellant, v Sherran Fields et al.,Defendants, and Kecia J. Weaver et al., Respondents. |
—[*1] Kecia J. Weaver, Brooklyn, N.Y., respondent pro se and for respondent Kecia J. Weaver,P.C. Stella Azie, P.C., Bronx, N.Y. (Stella Azie pro se), respondent pro se.
In an action, inter alia, to recover damages for fraud and conversion, the plaintiff appeals, aslimited by her brief, from so much of an order of the Supreme Court, Nassau County (Murphy,J.), dated May 3, 2010, as (1) granted those branches of the motion of the defendants Stella Azieand Stella Azie, P.C., which were pursuant to CPLR 3211 to dismiss the complaint insofar asasserted against them, (2) granted the separate motion of the defendants Kecia J. Weaver andKecia J. Weaver, P.C., pursuant to CPLR 3211 to dismiss the complaint insofar as assertedagainst them, and (3) denied that branch of her cross motion which was pursuant to CPLR 3025(b) for leave to amend the complaint.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
The plaintiff alleges that the defendants conspired to defraud her of her real property bycausing her to believe that she was refinancing the mortgage on her home when, in actuality, shewas conveying her property to the defendant Sherran Fields. In the complaint filed on March 25,2009, the plaintiff asserted causes of action sounding in conversion, conspiracy, fraud, impliedcontract, breach of fiduciary duty, and malpractice. The Supreme Court granted those branches ofthe separate motions of the defendants Kecia J. Weaver and Kecia J. Weaver, P.C. (hereinaftertogether Weaver), and the defendants Stella Azie and Stella Azie, P.C. (hereinafter togetherAzie), which were to dismiss the complaint insofar as asserted against each of them pursuant toCPLR 3211. The Supreme Court also denied that branch of the plaintiff's motion which waspursuant to CPLR 3025 (b) for leave to amend the complaint. We affirm the order insofar asappealed from.
" 'In order to establish a cause of action to recover damages for conversion, "the plaintiffmust show legal ownership or an immediate superior right of possession to a specific identifiablething and must show that the defendant exercised an unauthorized dominion over the thing inquestion . . . to the exclusion of the plaintiff's rights" ' " (Matter of Channel Mar.Sales, Inc. v City of New York, 75 AD3d [*2]600, 601[2010], quoting Messiah's CovenantCommunity Church v Weinbaum, 74 AD3d 916, 919 [2010], quoting IndependenceDiscount Corp. v Bressner, 47 AD2d 756, 767 [1975]). Here, the complaint fails to state acause of action to recover damages for conversion against Azie or Weaver because it is notalleged in the complaint, or otherwise set forth in the plaintiff's opposing papers, that Azie orWeaver exercised unauthorized dominion over the plaintiff's real property. Since Azie andWeaver were never in possession of the property, they cannot be held liable to the plaintiff for analleged conversion of the property. Moreover, as the Supreme Court correctly concluded, "[a]naction sounding in conversion does not lie where the property involved is real property"(Garelick v Carmel, 141 AD2d 501, 502 [1988]; see Dickinson v Igoni, 76 AD3d 943, 945 [2010]). Thus, the causeof action to recover damages for conversion was properly dismissed insofar as asserted againstAzie and Weaver for failure to state a cause of action (see CPLR 3211 [a] [7]).
New York does not recognize civil conspiracy to commit a tort as an independent cause ofaction; rather, such a claim stands or falls with the underlying tort (see Hebrew Inst. for Deaf & ExceptionalChildren v Kahana, 57 AD3d 734, 735 [2008]; Salvatore v Kumar, 45 AD3d 560, 563 [2007]). Since the viabilityof the claim of civil conspiracy in this case was derivative of the underlying tort of conversion,and the latter claim must be dismissed, the cause of action alleging a civil conspiracy also mustbe dismissed insofar as asserted against Azie and Weaver (see CPLR 3211 [a] [7]).
The Supreme Court properly dismissed the cause of action to recover damages for fraudinsofar as asserted against Azie and Weaver (see CPLR 3211 [a] [7]). In this regard, thecomplaint alleges that Azie and Weaver "made certain material oral and/or writtenrepresentations and statements regarding past and/or existing facts regarding the subject propertywhich did not include matters of mere opinion," and that these statements were false, known tobe false, were intended to deceive, and that the plaintiff relied upon them to her detriment.However, the plaintiff failed to allege or provide details of any misstatements ormisrepresentations made to her specifically by Azie or Weaver, as required by CPLR 3016 (b)(id.). Furthermore, there can be no recovery against Azie for any claimed omissions offact since "[t]he mere nondisclosure of a material fact, unaccompanied by some deceptive act,does not constitute fraud absent a confidential or fiduciary relationship" (First Keystone Consultants, Inc. v DDRConstr. Servs., 74 AD3d 1135, 1138 [2010]).
While the plaintiff alleges that Weaver, who acted as the plaintiff's counsel during theclosing, had a fiduciary relationship to her, she did not adequately allege any act of deceptioncommitted by Weaver (id.). In any event, the plaintiff's allegation of fraud assertedagainst Weaver is time-barred. Pursuant to CPLR 213 (8), a six-year statute of limitations periodis generally applicable where there would be no injury but for the fraud (see New YorkSeven-Up Bottling Co. v Dow Chem. Co., 96 AD2d 1051 [1983], affd 61 NY2d 828[1984]; see also Ruffing v Union Carbide Corp., 308 AD2d 526 [2003]). Here, however,the gravamen of the plaintiff's allegations against Weaver is that Weaver did not fulfill herprofessional duty to protect the plaintiff in the real estate transaction at issue. Thus, the fraudcause of action asserted as against Weaver is merely incidental to the negligence cause of action.Since, in reality, the plaintiff's claims against Weaver allege professional negligence, the fraudcause of action is subject to a three-year statute of limitations applicable to legal malpractice (cf. Klein v Gutman, 12 AD3d 417[2004]). The complaint alleges that the fraud and negligence occurred during the November 25,2005, closing. The action was not commenced until March 25, 2009. As such, the cause of actionalleging fraud is time-barred insofar as asserted against Weaver (see CPLR 3211 [a] [5]).
A cause of action predicated on a theory of implied contract or quasi contract is not viablewhere there is an express agreement that governs the subject matter underlying the action (seeClark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388-389 [1987]). Here, there is anexpress contract of sale that was signed by the plaintiff and Fields, wherein the plaintiff agreed to"sell and convey" the property to Fields for $300,000 (see CPLR 3211 [a] [1]). Theplaintiff did not dispute that she signed the contract of sale for the conveyance of her property."[A] party is under an obligation to read a document before he or she signs it, and a party cannotgenerally avoid the effect of a [document] on the ground that he or she did not read it or know itscontents" (Cash v Titan Fin. Servs.,Inc., 58 AD3d 785, 788 [2009] [internal quotation marks and citations omitted]).Therefore, the fourth cause of action alleging breach of an implied contract or the right torecovery in quasi contract was properly dismissed insofar as asserted [*3]against Azie and Weaver.
The remaining two causes of action asserted against Weaver, alleging breach of fiduciaryduty and professional malpractice, are time-barred. The statute of limitations for a breach offiduciary duty cause of action depends on the substantive remedy which the plaintiff seeks(see Loengard v Santa Fe Indus., 70 NY2d 262 [1987]). Where the relief sought isequitable in nature, the statute of limitations is six years, and where the relief sought is purelymonetary, the statute of limitations is three years (see Monaghan v Ford Motor Co., 71 AD3d 848 [2010]). Here, thecause of action against Weaver alleging breach of fiduciary duty seeks purely monetary damages,and, under the circumstances, a three-year statute of limitations applies. The claimed breachoccurred during the closing on November 25, 2005. As such, the cause of action to recoverdamages for breach of fiduciary duty is time-barred insofar as asserted against Weaver (seeCPLR 3211 [a] [5]). Similarly, the cause of action to recover damages for professionalmalpractice were also properly dismissed insofar as asserted against Weaver. The statute oflimitations for a legal malpractice claim is three years (see CPLR 214 [6]; Tsafatinos v Lee David Auerbach,P.C., 80 AD3d 749 [2011]). The alleged legal malpractice occurred on November 25,2005, and, as such, the claim of professional negligence, i.e., legal malpractice, is time-barred(see CPLR 3211 [a] [5]). Contrary to the plaintiff's contention, the continuousrepresentation doctrine is inapplicable. The complaint did not allege there was a mutualunderstanding that Weaver's legal representation of the plaintiff would continue after the closing(cf. Lytell v Lorusso, 74 AD3d905 [2010]).
Finally, although leave to amend the complaint should be freely given, a proposedamendment which is palpably insufficient to state a cause of action or is patently devoid of meritshould not be allowed (see Shabazz vVerizon N.Y., Inc., 83 AD3d 815 [2011]). Since the proposed amendment was palpablyinsufficient to state any cause of action and was patently devoid of merit, the Supreme Courtproperly denied that branch of the plaintiff's cross motion which was for leave to amend thecomplaint (id.).
The plaintiff's remaining contentions are without merit. Covello, J.P., Leventhal, Lott andMiller, JJ., concur. [Prior Case History: 27 Misc 3d 1228(A), 2010 NY Slip Op50955(U).]