| McColgan v Brewer |
| 2013 NY Slip Op 08492 [112 AD3d 1191] |
| December 19, 2013 |
| Appellate Division, Third Department |
| John McColgan, Appellant, v Donald Brewer et al.,Defendants, and Chicago Title Insurance Company,Respondent. |
—[*1] Fidelity National Law Group, New York City (Edward M. Tobin of counsel) andJacobowitz & Gubits, LLP, Walden, for respondent.
Stein, J.P. Appeal from an amended order of the Supreme Court (Zwack, J.), enteredMay 9, 2012 in Ulster County, which granted a motion by defendant Chicago TitleInsurance Company for summary judgment dismissing the complaint and cross claimsagainst it.
The underlying facts of this case are more fully set forth in our prior decisions (84AD3d 1573 [2011]; 75 AD3d 876 [2010]). Briefly, in April 2005, plaintiff purchasedproperty that included a landlocked 10-acre parcel of land in the Town of Rosendale,Ulster County, to which access from Route 32 depends upon a right-of-way (hereinafterROW) over certain adjoining properties. In connection with that purchase, plaintiff wasrepresented by defendant Philip Kirschner, who retained Abbacy Abstract to procure atitle insurance policy. Ultimately, plaintiff purchased a policy through Abbacy fromdefendant Chicago Title Insurance Company, which insured against, among other things,loss or damage resulting from a lack of access to and from the property. Thereafter, inconnection with zoning applications made by plaintiff, Kirschner obtained documentsfrom Abbacy with respect to the policy and the ROW. When [*2]plaintiff's use of the ROW was challenged by his neighborthe following year, Kirschner contacted Abbacy to discuss the ROW. Plaintiff eventuallyfiled a claim with Chicago Title under the title insurance policy. Upon Chicago Title'srejection of the claim, plaintiff commenced actions—which were subsequentlyconsolidated and amended—asserting, as pertinent here, claims against ChicagoTitle for breach of contract and fraud.
Following this Court's affirmance of a determination of Supreme Court thatplaintiff's parcel was not benefitted by the ROW (84 AD3d 1573, supra) andsettlement of plaintiff's breach of contract claim against Chicago Title (as well as variousclaims brought by plaintiff against other parties), Chicago Title moved for summaryjudgment dismissing, among other things, the fraud claim. Supreme Court granted thatmotion, prompting this appeal by plaintiff.
We affirm. The essence of plaintiff's fraud claim is that, after the title insurancepolicy was issued and questions arose regarding plaintiff's access to the ROW, Abbacy,as an agent of Chicago Title, continued to represent to Kirschner that plaintiff wasentitled to the benefit of the ROW and that this representation was made with knowledgeof its falsity for the purpose of inducing plaintiff to refrain from filing a claim pursuant tothe title insurance policy. Supreme Court found that Chicago Title was entitled tojudgment dismissing the claim because Abbacy was not acting within the scope of itsauthority when it made the subject representations. Based upon our view of the record,we find that, even if Abbacy did have authority to act as an agent of Chicago Title,Chicago Title established the absence of fraud on Abbacy's part as a matter of law andwe affirm the dismissal of that cause of action on that basis.
" 'The elements of a cause of action for fraud [are] a material misrepresentation of afact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by theplaintiff and damages' " (Maki vBassett Healthcare, 85 AD3d 1366, 1369 [2011], appeal dismissed 17NY3d 855 [2011], lv dismissed and denied 18 NY3d 870 [2012], quoting Eurycleia Partners, LP v Seward &Kissel, LLP, 12 NY3d 553, 559 [2009]; see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173,178 [2011]; DerOhannesian vCity of Albany, 110 AD3d 1288 [2013]; Lusins v Cohen, 49 AD3d 1015, 1017 [2008]). Here, insupport of its motion, Chicago Title submitted proof in the form of deposition testimonyand affidavits establishing that, after plaintiff's rights with respect to the ROW came intoquestion, Theresa Larios (one of Abbacy's owners) and Michael Rowe (a title searcherfor Abbacy) reviewed the relevant documents, discussed the matter and concluded thatplaintiff's claim to use the ROW was valid. Additionally, Rowe ultimately met withKirschner to discuss the issue and both independently reached the same conclusion. BothRowe and Larios denied any attempt to convince Kirschner of their opinion anduniformly indicated that they arrived at such opinion based upon a sincere belief thatplaintiff had a legally enforceable ROW.
Moreover, the record establishes that Kirschner—an experienced real estateattorney—undertook an independent examination of the documents and drew hisown conclusion that the ROW benefitted plaintiff's parcel. Notably, plaintiff testified thathe held off filing suit because Kirschner was "so confident" as to the validity of theROW. Notwithstanding the fact that the representation made by Abbacy (conveying anopinion shared by Kirschner) was ultimately deemed to be incorrect (84 AD3d at1574-1575), other independent experts—a title searcher/insurer and a seasonedreal-estate attorney—also reviewed the relevant documents in connection with theprior motions and opined that plaintiff had a legally enforceable ROW. Based upon theforegoing, Chicago Title met its threshold burden of establishing a lack of knowledge ofthe falsity of Abbacy's representations and the absence of reliance by plaintiff [*3]thereon (see Scaturro v Sutera, 57 AD3d 1283, 1283-1284 [2008]),shifting the burden to plaintiff to establish the existence of a triable issue of fact (see Stollsteimer v Kohler, 77AD3d 1259, 1260 [2010]).
Nothing presented by plaintiff in opposition to Chicago Title's motion would allow areasonable inference either that Abbacy employees knew that their representationsregarding the ROW were false or that plaintiff relied on them (see Waterscape Resort LLC vMcGovern, 107 AD3d 571, 572 [2013]; Scaturro v Sutera, 57 AD3d at1283; see also Van Kleeck vHammond, 25 AD3d 941, 943 [2006]). In fact, plaintiff testified that he couldnot recall any specific conversation in which he was given information by Abbacy for thepurpose of inducing him to refrain from filing a claim against Chicago Title and that hehad no knowledge—as opposed to pure speculation—as to Abbacy'smotivation to be untruthful. Accordingly, even when we view the evidence in the lightmost favorable to plaintiff and give him the benefit of all reasonable inferences that canbe drawn therefrom (see Careyv Schwab, 108 AD3d 976, 978 [2013]; Beckerleg v Tractor Supply Co., 107 AD3d 1208, 1209[2013]), we find that plaintiff failed to raise a triable issue of fact sufficient to defeatsummary judgment dismissing the fraud claim.[FN*]Therefore, we need not consider plaintiff's contentions regarding Abbacy's authority toact on Chicago Title's behalf. To the extent not specifically addressed herein, plaintiff'sremaining claims have been examined and are either academic or lacking in merit.
McCarthy, Spain and Egan Jr., JJ., concur. Ordered that the amended order isaffirmed, with costs.
Footnote *: Insofar as plaintiffchallenges Chicago Title's conduct surrounding and postdating the denial of the claimunder the title insurance policy, such argument—which amounts to a bad faithclaim—would fall within the now settled breach of contract claim (see generally Dinstber v AllstateIns. Co., 110 AD3d 1410 [2013]).