| Baumann v Hanover Community Bank |
| 2012 NY Slip Op 07947 [100 AD3d 814] |
| November 21, 2012 |
| Appellate Division, Second Department |
| George W. Baumann, Appellant, v Hanover CommunityBank, Respondent. |
—[*1] Cullen and Dykman, LLP, Garden City, N.Y. (James G. Ryan and Cynthia A. Augello ofcounsel), for respondent.
In an action, inter alia, to recover damages for breach of a loan commitment, the plaintiffappeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County(Bucaria, J.), dated June 7, 2011, as granted that branch of the defendant's motion which waspursuant to CPLR 3211 (a) to dismiss the complaint, and denied his cross motion for summaryjudgment on the issue of liability on the cause of action to recover damages for breach of the loancommitment.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action against the defendant, Hanover Community Bank, torecover damages for breach of a loan commitment, negligent and intentional infliction ofemotional distress, and breach of fiduciary duty. The complaint alleges that in April 2010, thedefendant issued a loan commitment to the plaintiff and his wife in connection with a residentialmortgage, the mortgage closing was held on May 7, 2010, and the plaintiff's wife died on May12, 2010. The complaint further alleges that on May 13, 2010, when the defendant learned thatthe plaintiff's wife had died, the defendant refused to fund the loan. In the order appealed from,the Supreme Court, among other things, granted that branch of the defendant's motion which waspursuant to CPLR 3211 (a) to dismiss the complaint, and denied the plaintiff's cross motion forsummary judgment on the issue of liability on the cause of action to recover damages for breachof the loan commitment.
As an initial matter, there is no merit to the defendant's contention that the plaintiff failed toassemble a sufficient record for this Court to reach an informed decision on the merits andprovide meaningful appellate review of the order insofar as appealed from (cf. Lew v Lew, 82 AD3d 1171[2011]).
On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, the court must afford the complaint a liberal construction (see CPLR3026), "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of everypossible [*2]favorable inference, and determine only whether thefacts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83,87-88 [1994]; see Nonnon v City ofNew York, 9 NY3d 825, 827 [2007]). However, a court may consider evidentiarymaterial submitted by a defendant in support of a motion to dismiss a complaint pursuant toCPLR 3211 (a) (7) (see CPLR 3211 [c]; Sokol v Leader, 74 AD3d 1180, 1181 [2010]). "When evidentiarymaterial is considered" on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), andthe motion has not been converted to one for summary judgment, "the criterion is whether the[plaintiff] has a cause of action, not whether he [or she] has stated one, and, unless it has beenshown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless itcan be said that no significant dispute exists regarding it . . . dismissal should noteventuate" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Basile v Wiggs, 98 AD3d 640,641 [2012]; Sokol v Leader, 74 AD3d at 1182).
Here, the complaint was predicated upon an allegation that the loan was not funded by thedefendant. However, the defendant "indisputably" demonstrated "through evidentiary material"that this allegation was "not a fact at all" (Baron v Galasso, 83 AD3d 626, 628 [2011] [internal quotationmarks omitted]), by showing that the loan was, in fact, funded. Therefore, the Supreme Courtproperly granted that branch of the defendant's motion which was to dismiss the cause of actionto recover damages for breach of the loan commitment. For the same reason, the Supreme Courtproperly denied the plaintiff's cross motion for summary judgment on the issue of liability on thiscause of action, as the plaintiff failed to make a prima facie showing of entitlement to judgmentas a matter of law.
The Supreme Court also properly granted that branch of the defendant's motion which was todismiss the second cause of action, which was to recover damages for negligent and intentionalinfliction of emotional distress. With respect to the allegations sounding in negligent infliction ofemotional distress, a breach of the duty of care "resulting directly in emotional harm iscompensable" (Kennedy v McKesson Co., 58 NY2d 500, 504 [1983]) when the mentalinjury is "a direct, rather than a consequential, result of the breach" (id. at 506) and whenthe claim possesses "some guarantee of genuineness" (Ferrara v Galluchio, 5 NY2d 16,21 [1958]; see Ornstein v New YorkCity Health & Hosps. Corp., 10 NY3d 1, 6 [2008]). Applying these principles, thecomplaint does not allege the existence of a duty on the part of the defendant to the plaintiff inconnection with the subject loan commitment. As alleged, "the parties' relationship was acontractual one between a borrower and a bank, which does not give rise to a duty which couldfurnish a basis for tort liability" (Rakylarv Washington Mut. Bank, 51 AD3d 995, 996 [2008]; see Johnson v JamaicaHosp., 62 NY2d 523, 528 [1984]).
In order to state a cause of action to recover damages for intentional infliction of emotionaldistress, the complaint must allege conduct that was "so outrageous in character, and so extremein degree, as to go beyond all possible bounds of decency . . . and [was] utterlyintolerable in a civilized community" (Marmelstein v Kehillat New Hempstead: The Rav Aron Jofen CommunitySynagogue, 11 NY3d 15, 22-23 [2008] [internal quotation marks omitted]; seeHowell v New York Post Co., 81 NY2d 115, 121 [1993]). Here, the allegations in thecomplaint did not meet that burden.
The plaintiff's remaining contentions with respect to the second cause of action are withoutmerit.
Further, the Supreme Court properly granted that branch of the defendant's motion whichwas to dismiss the cause of action to recover damages for breach of fiduciary duty for failure tostate a cause of action. The elements of a cause of action to recover damages for breach offiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant,and (3) damages directly caused by the defendant's misconduct (see Rut v Young Adult Inst., Inc., 74AD3d 776 [2010]). Generally, the relationship between a borrower and a bank is contractualin nature and does not create a fiduciary relationship between them (see e.g. Marine MidlandBank v Hallman's Budget Rent-A-Car of Rochester, 204 AD2d 1007, 1007 [1994]; BankLeumi Trust Co. of N.Y. v Block 3102 Corp., 180 AD2d 588, 589 [1992]; see also Call v Ellenville Natl. Bank, 5AD3d 521, 523 [2004]). Here, the complaint failed to allege that the parties' relationship wassuch that "one of them [was] under a duty to act for or to give advice for the benefit of anotherupon matters within the scope of the relation" (AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 11NY3d 146, 158 [2008] [internal [*3]quotation marksomitted]; see Roni LLC v Arfa, 18NY3d 846, 848 [2011]). Dillon, J.P., Leventhal, Hall and Austin, JJ., concur.