| Chicago Tit. Ins. Co. v LaPierre |
| 2013 NY Slip Op 01523 [104 AD3d 720] |
| March 13, 2013 |
| Appellate Division, Second Department |
| Chicago Title Insurance Company, as Subrogee of Joy S.Perla and Others, Appellant, v Terrence Theophilius LaPierre,Respondent. |
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Joelson & Rochkind, New York, N.Y. (Steven H. Rochkind and Geofrey Liu ofcounsel), for respondent.
In a subrogation action, inter alia, to recover damages pursuant to Executive Law§ 135 for misconduct by a notary public, the plaintiff appeals, as limited by itsbrief, from so much of a judgment of the Supreme Court, Kings County (Kurtz, Ct. Atty.Ref.), entered March 28, 2012, as, upon a decision of the same court dated December 30,2011, made after a nonjury trial, is in favor of the defendant and against it dismissing thesecond cause of action.
Ordered that the judgment is reversed insofar as appealed from, on the law, withcosts, the second cause of action is reinstated, and the matter is remitted to the SupremeCourt, Kings County, for further proceedings consistent herewith.
The plaintiff subrogee, inter alia, seeks to recover damages pursuant to ExecutiveLaw § 135 for misconduct by a notary public. The second cause of action allegedthat the defendant, a notary public, engaged in misconduct in violation of Executive Law§ 135, causing damages to the subrogors which were recoverable by the plaintiff.After a nonjury trial, the Supreme Court, inter alia, determined that the defendant hadengaged in notarial misconduct. However, it nevertheless dismissed the second cause ofaction on the ground that the plaintiff failed to demonstrate that the subrogorsdetrimentally relied on the defendant's conduct.
Executive Law § 135 provides, in relevant part, that "[f]or any misconduct bya notary public in the performance of any of his powers such notary public shall be liableto the parties injured for all damages sustained by them." Thus, the plain language of thestatute does not require a showing of detrimental reliance (compare Parks v Leahey &Johnson, 81 NY2d 161, 164 n [1993]). Rather, a plaintiff seeking to recover underthat section need only show that the notary engaged in notarial misconduct and that suchmisconduct was a proximate cause of the plaintiff's injury (see Plemmenou v Anninos, 12AD3d 657, 658 [2004]; accord Wells Fargo Bank, N.A. v Sherwood, 82 AD3d758, 758-759 [2011]; Maloney v Stone, 195 AD2d 1065, 1068 [1993];Amodei v New York State Chiropractic Assn., 160 AD2d 279, 282 [1990],affd 77 NY2d 891 [1991]).
Here, the Supreme Court properly concluded that the defendant engaged in notarialmisconduct (see Plemmenou v Anninos, 12 AD3d at 658; Maloney vStone, 195 AD2d at 1068). [*2]However, indismissing the second cause of action, the Supreme Court relied upon this Court'sdecision Rastelli v Gassman (231 AD2d 507, 508-509 [1996]) for theproposition that a plaintiff must show detrimental reliance upon the notary's conduct. InRastelli, the gravamen of the notarial misconduct cause of action dismissed bythis Court was that two of the appellants had been defrauded into making a mortgageloan by a falsely-notarized "confirmatory" deed. Since this "confirmatory" deed was notexecuted until after the loan was made, this Court concluded that these two lenders couldnot have relied to their detriment on the false notarization.
The broad legal statement employed in Rastelli, indicating that detrimentalreliance is a required element in notarial misconduct cases, is applicable to the facts ofthat case and should be confined to cases with analogous facts (see e.g. Clark vDodge, 269 NY 410, 417 [1936]). Accordingly, where, as in Rastelli, thespecies of notarial misconduct asserted is fraud against the plaintiff, the plaintiff may berequired to demonstrate detrimental reliance in order to satisfy the causal elementcontained in Executive Law § 135 (see Mars v Grant, 36 AD3d 561, 562 [2007]). Where,however, a plaintiff is asserting a different species of misconduct or a different causaltheory, causation may be demonstrated without a showing of detrimental reliance (seee.g. Plemmenou v Anninos, 12 AD3d at 657-658). Thus, in Plemmenou vAnninos (12 AD3d at 657), this Court concluded that a showing of detrimentalreliance was not required to state a cause of action to recover damages for notarialmisconduct where the plaintiff was unaware that her former husband had allegedlyforged her signature on a power of attorney and did not allege that the defendant, whonotarized her purported signature, had defrauded her.
Contrary to the determination of the Supreme Court, this Court's decision inPlemmenou was not premised on the conclusion that "[d]etrimental reliance canbe demonstrated where the plaintiff suing for notarial misconduct is the party [whose]forged signature was notarized." Rather, that case turned on the application of ExecutiveLaw § 135 to a different set of factual allegations. Those allegations did notinclude an assertion that the plaintiff had been defrauded by the notarized signature and,consequently, detrimental reliance was not necessary to prove causation. Instead, thecausation element was satisfied by the assertion that the notarial misconduct had resultedin the conveyance of her property without her consent (see Plemmenou vAnninos, 12 AD3d at 657).
In this case, the plaintiff alleged that the defendant's misconduct resulted in therecording of a forged deed which caused the subrogors to sustain damages. The plaintiffdid not assert that the subrogors had been defrauded by the allegedly forged signature.The theory of causation, as in Plemmenou, was that the notarial misconductfacilitated actions by third parties which resulted in damages to the subrogors. As inPlemmenou, detrimental reliance could never be shown because, "by the verydesign of the plan, [the subrogors were] not meant to know of it" (id. at 658).
Here, given the theory of liability alleged in the complaint and the evidence adducedat trial, the plaintiff was not obligated to demonstrate detrimental reliance (seeExecutive Law § 135; Plemmenou v Anninos, 12 AD3d at 658).Accordingly, the Supreme Court erred in dismissing the second cause of action torecover damages for notarial misconduct on the ground that the plaintiff failed todemonstrate that the subrogors detrimentally relied on the defendant's conduct.
In light of its determination, the Supreme Court did not make any determination,under the proper standard, as to whether the plaintiff's notarial misconduct caused thesubrogors damages which were recoverable by the plaintiff in this action (see generally Green Apple Mgt.Corp. v Aronis, 95 AD3d 826, 827 [2012]). Under the circumstances of thiscase, the matter must be remitted to the Supreme Court, Kings County, for adetermination as to whether the plaintiff's notarial misconduct caused the subrogorsdamages which were recoverable by the plaintiff in this action.
In light of the foregoing, we need not address the defendant's remaining contention.Angiolillo, J.P., Dickerson, Miller and Hinds-Radix, JJ., concur.