| Weill v East Sunset Park Realty, LLC |
| 2012 NY Slip Op 08512 [101 AD3d 857] |
| December 12, 2012 |
| Appellate Division, Second Department |
| Meyer Weill et al., Plaintiffs, v East Sunset Park Realty,LLC, et al., Defendants, City of New York et al., Respondents, and TitleVest Agency, Inc.,Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Susan Davidson of counsel),for respondents.
In an action, inter alia, to foreclose a mortgage, the defendant TitleVest Agency, Inc., appealsfrom an order of the Supreme Court, Kings County (Martin, J.), dated July 5, 2011, whichgranted the motion of the defendants City of New York and New York City Department ofTaxation and Finance for summary judgment dismissing its cross claim against them forcontribution and indemnification.
Ordered that the order is affirmed, with costs.
In this mortgage foreclosure action, the plaintiffs claimed that their mortgage was superior inpriority to the interests claimed by the defendants East Sunset Park Realty, LLC (hereinafter EastSunset), and Flushing Preferred Funding Corp. (hereinafter Flushing), with respect to certain realproperty in Brooklyn. East Sunset and Flushing moved pursuant to CPLR 3211 (a) (7) to dismissthe complaint insofar as asserted against them, alleging that they did not have constructive oractual notice of the plaintiffs' mortgage interest, which had been improperly recorded (seeWeill v East Sunset Park Realty LLC, 101 AD3d 859 [2012] [decided herewith]). Thereafter,the plaintiffs served an amended complaint adding the defendant TitleVest Agency, Inc.(hereinafter TitleVest), alleging that the plaintiffs' predecessor in interest had hired TitleVest torecord their mortgage and that TitleVest had done so negligently, causing it to be misindexedunder the incorrect lot number in the Office of the City Register of the City of New York,Department of Finance (hereinafter the City Register). In its answer to the amended complaint,TitleVest alleged that the misindexing was due to the negligence of the City Register andasserted a cross claim for contribution and indemnification against the defendants City of NewYork and New York City Department of Taxation and Finance (hereinafter together the Citydefendants).
The City defendants moved for summary judgment dismissing the cross claim, asserting thatthey were shielded from liability pursuant to the doctrine of governmental immunity and that theydid not have a special relationship with TitleVest which would give rise to a special [*2]duty of care apart from any duty they might owe to the public ingeneral. In opposition, TitleVest did not advance any contention relevant to the issue of specialduty but contended that governmental immunity does not apply where the act complained of isthe misindexing of a mortgage. The Supreme Court granted the City defendants' motion forsummary judgment dismissing the cross claim, and TitleVest appeals.
"Government action, if discretionary, may not be a basis for liability, while ministerialactions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty tothe public in general" (McLean v City ofNew York, 12 NY3d 194, 203 [2009]; see Valdez v City of New York, 18 NY3d 69, 76-77 [2011]; Pelaez v Seide, 2 NY3d 186,199-200 [2004]). Here, the Supreme Court held that the City defendants did not owe TitleVest aspecial duty of care and, thus, Titlevest could not recover on its cross claim against them. Onappeal, TitleVest does not dispute that the subject conduct by the City defendants was ministerialin nature and, thus, a special duty must be shown to exist in order to impose liability on them.However, TitleVest contends that its cross claim is solely one for contribution predicated on theCity defendants' liability for an alleged breach of their special duty to the plaintiffs, rather than aspecial duty running to TitleVest. This contention is improperly raised for the first time on thisappeal and, therefore, is not properly before this Court (see Waterman v Weinstein Mem. Chapel, 49 AD3d 717, 718[2008]). Accordingly, the Supreme Court properly granted the City defendants' motion forsummary judgment dismissing TitleVest's cross claim against them. Angiolillo, J.P., Sgroi,Cohen and Miller, JJ., concur.