| Nisari v Ramjohn |
| 2011 NY Slip Op 05467 [85 AD3d 987] |
| June 21, 2011 |
| Appellate Division, Second Department |
| Maria Nisari et al., Respondents, v Azard Ramjohn et al.,Defendants, and Ridge Abstract Corp., Respondent, and Commonwealth Land Title InsuranceCompany, Appellant. |
—[*1] Salfarlie, Salfarlie & Assoc., P.C., Jamaica, N.Y. (Donald A. Salfarlie of counsel), forplaintiffs-respondents.
In an action, inter alia, to recover damages for breach of a title insurance policy, thedefendant Commonwealth Land Title Insurance Company appeals from an order of the SupremeCourt, Queens County (Golia, J.), dated September 30, 2009, which denied its motion to dismissthe complaint insofar as asserted against it pursuant to CPLR 3211 (a) (1) and (7) and granted theplaintiffs' cross motion for leave to serve an amended complaint.
Ordered that the order is reversed, on the law, with costs, that branch of the motion of thedefendant Commonwealth Land Title Insurance Company which was to dismiss the complaintpursuant to CPLR 3211 (a) (1) insofar as asserted against it is granted, that branch of the motionwhich was to dismiss the complaint pursuant to 3211 (a) (7) is denied as academic, and theplaintiffs' cross motion is denied.
The plaintiffs purchased a parcel of real property (hereinafter the subject property) from thedefendants Azard Ramjohn and Vishmani Mohan (hereinafter the sellers). The plaintiffs obtaineda title insurance policy (hereinafter the policy) from the defendant Commonwealth Land TitleInsurance Company (hereinafter Commonwealth).
The plaintiffs commenced this action against, among others, the sellers, alleging, inter alia,that the subject property was a part of a larger parcel of property owned by the sellers, and thatthe sellers breached their contract with the defendants by failing to obtain a certificate ofoccupancy and subdivision approval from certain government agencies prior to the sale. Theplaintiffs also asserted two causes of action against Commonwealth. The eleventh cause of actionalleged that the plaintiffs were entitled to recover the value of the property from Commonwealthon the ground that Commonwealth "failed to raise an exception in the title report with regard tothe lack of proper subdivision of the premises," and the twelfth cause of action alleged that thetitle delivered to them was unmarketable.[*2]
Commonwealth moved to dismiss the complaint insofaras asserted against it pursuant to CPLR 3211 (a) (1) and (7). In support of its motion,Commonwealth submitted, among other things, the policy. The plaintiffs opposedCommonwealth's motion and cross-moved for leave to amend the complaint to add twoadditional causes of action against Commonwealth. In support of their position, the plaintiffssubmitted, among other things, a certificate and report of title. The Supreme Court deniedCommonwealth's motion and granted the plaintiff's cross motion. We reverse.
To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidencewhich forms the basis of the defense must resolve all factual issues as a matter of law andconclusively dispose of the plaintiff's claim (see Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 571[2005]; FG Harriman Commons, LLC vFBG Owners, LLC, 75 AD3d 527, 527-528 [2010]; GuideOne Specialty Ins. Co. v Admiral Ins. Co., 57 AD3d 611, 613[2008]). Although the facts alleged in the complaint are regarded as true, and the plaintiffs areafforded the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83,87-88 [1994]), allegations consisting of bare legal conclusions as well as factual claims flatlycontradicted by documentary evidence are not entitled to any such consideration (see Adler v 20/20 Cos., 82 AD3d915 [2011]; PrudentialWykagyl/Rittenberg Realty v Calabria-Maher, 1 AD3d 422, 422-423 [2003]; NewYork Community Bank v Snug Harbor Sq. Venture, 299 AD2d 329, 330 [2002]; see alsoMaas v Cornell Univ., 94 NY2d 87, 91 [1999]).
The policy submitted by Commonwealth in support of its motion insured the plaintiffsagainst, among other things, unmarketability of the title. The term "[u]nmarketability of the title"was defined as "an alleged . . . matter affecting the title to the land, not excluded orexcepted from coverage, which would entitle the purchaser . . . to be released fromthe obligation to purchase by virtue of a contractual condition requiring the delivery ofmarketable title."
The policy excepted from coverage loss or damage which arose by reason of "[a]ny law,ordinance or governmental regulation . . . restricting, regulating, prohibiting orrelating to . . . the occupancy use, or enjoyment of the land . . . thecharacter, dimensions or location of any improvement now or hereinafter erected on the land. . . [or] a separation in ownership or a change in the dimensions or area of the landor any parcel of which the land is or was a part."
"[A] policy of title insurance is a contract by which the title insurer agrees to indemnify itsinsured for loss occasioned by a defect in title" (L. Smirlock Realty Corp. v Title Guar.Co., 52 NY2d 179, 188 [1981]; seeDarbonne v Goldberger, 31 AD3d 693, 695 [2006]). "As with any contract,unambiguous provisions of an insurance contract must be given their plain and ordinary meaning. . . and the interpretation of such provisions is a question of law for the court" (White v Continental Cas. Co., 9 NY3d264, 267 [2007]; see Appleby vChicago Tit. Ins. Co., 80 AD3d 546, 549 [2011]).
Here, the policy is clear and unambiguous with respect to the limits of coverage afforded.Accordingly, no consideration should have been given to the certificate and report of titlesubmitted by the plaintiffs since, by its own terms, it was rendered null and void upon thedelivery of the policy, and therefore constituted extrinsic evidence (see GuideOne Specialty Ins. Co. v AdmiralIns. Co., 57 AD3d 611, 613 [2008]; Krystal Investigations & Sec. Bur., Inc. v United Parcel Serv., Inc., 35AD3d 817, 818 [2006]). Moreover, the " '[m]ere assertion by one that contract languagemeans something to him, where it is otherwise clear, unequivocal and understandable when readin connection with the whole contract, is not in and of itself enough to raise a triable issue of fact'" (Goldman v Metropolitan Life Ins.Co., 5 NY3d 561, 571 [2005], quoting Bethlehem Steel Co. v Turner Constr.Co., 2 NY2d 456, 460 [1957]).
We conclude that the documentary evidence submitted by Commonwealth flatly contradictedthe assertions made in the eleventh and twelfth causes of action and warranted their dismissal (see Adler v 20/20 Cos., 82 AD3d915 [2011]; Cohen v NassauEducators Fed. Credit Union, 37 AD3d 751, 752 [2007]; PrudentialWykagyl/Rittenberg Realty v Calabria-Maher, 1 AD3d at 422-423; New YorkCommunity Bank v Snug Harbor Sq. Venture, 299 AD2d at 330). Accordingly, the SupremeCourt should have granted Commonwealth's motion to dismiss the complaint insofar as assertedagainst it.
Furthermore, the Supreme Court improvidently exercised its discretion in granting the [*3]plaintiffs' cross motion for leave to serve an amended complaint.While generally leave to amend should be freely given (see CPLR 3025 [b]), leaveshould not be granted where "the proposed amendment is palpably insufficient as a matter of lawor is totally devoid of merit" (Morton vBrookhaven Mem. Hosp., 32 AD3d 381, 381 [2006]; see Jenal v Brown, 80 AD3d 727,728 [2011]). Here, the proposed amendments were totally devoid of merit. Accordingly, theSupreme Court should have denied the plaintiffs' cross motion for leave to serve an amendedcomplaint. Rivera, J.P., Eng, Roman and Miller, JJ., concur.