| Patterson v Somerset Invs. Corp. |
| 2012 NY Slip Op 04726 [96 AD3d 817] |
| June 13, 2012 |
| Appellate Division, Second Department |
| Lancelotte E. Patterson, Respondent, v Somerset InvestorsCorp., Appellant. |
—[*1] Stephen A. Katz, New York, N.Y. (Michael Costello of counsel), for respondent.
In an action, inter alia, to recover damages for fraud and violation of General Business Law§ 349, the defendant appeals, as limited by its brief, from so much of an order of theSupreme Court, Queens County (J. Golia, J.), dated February 10, 2011, as denied that branch ofits motion which was pursuant to CPLR 3211 (a) (1) to dismiss the first cause of action alleging aviolation of General Business Law § 349.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendant's motion which was pursuant to CPLR 3211 (a) (1) to dismiss the firstcause of action alleging a violation of General Business Law § 349 is granted.
A deceptive act or practice is an essential element of a cause of action to recover damages fora violation of General Business Law § 349 (see City of New York v Smokes-Spirits.Com, Inc., 12 NY3d 616,621 [2009]; Stutman v Chemical Bank, 95 NY2d 24, 29 [2000]; Wilner v Allstate Ins. Co., 71 AD3d155, 161-162 [2010]). Contrary to the plaintiff's contention, the loan instrument and otherdocuments submitted by the defendant in support of that branch of its motion which waspursuant to CPLR 3211 (a) (1) to dismiss the cause of action alleging a violation of GeneralBusiness Law § 349 demonstrated that the terms of the subject mortgage loan were fullyset forth in the loan documents, and that no deceptive act or practice occurred in this case (see Morales v AMS Mtge. Servs., Inc.,69 AD3d 691, 693 [2010]). The plaintiff's claim that he did not read the documents beforeexecuting them is unavailing, since a party who signs a document without any valid excuse forhaving failed to read it is "conclusively bound" by its terms (Gillman v Chase ManhattanBank, 73 NY2d 1, 11 [1988]; seeKMK Safety Consulting, LLC v Jeffrey M. Brown Assoc., Inc., 72 AD3d 650, 650-651[2010]; Ahmed v Getty PetroleumMktg., Inc., 12 AD3d 385, 386 [2004]; Sofio v Hughes, 162 AD2d 518, 519-520[1990]). Indeed, "the fact that the plaintiff sought and received a loan [that] he [allegedly] couldnot afford does not mean that he can now proceed on a [General Business Law] Section 349claim against the party that made his [purported] mistake possible" (Hayrioglu v GraniteCapital Funding, LLC, 794 F Supp 2d 405, 413 [2011]; see Emigrant Mtge. Co., Inc. v Fitzpatrick, 95 AD3d 1169 [2d Dept2012]). Accordingly, the documentary evidence submitted by the defendant on the motionconclusively established that the plaintiff had no cause of action pursuant to General BusinessLaw § 349.[*2]
In view of the foregoing, we do not consider theremaining issues raised by the parties. Mastro, A.P.J., Florio, Chambers and Roman, JJ., concur.