| Beneficial Homeowner Serv. Corp. v Williams |
| 2014 NY Slip Op 00316 [113 AD3d 713] |
| January 22, 2014 |
| Appellate Division, Second Department |
| Beneficial Homeowner Service Corporation,Plaintiff/Counterclaim Defendant-Respondent, v Nola Williams,Defendant/Third-Party Plaintiff/Counterclaim Plaintiff-Appellant et al., Defendants. FirstCentral National Life Insurance Company of New York et al., Third-PartyDefendants-Respondents. |
—[*1] McCabe, Weisberg & Conway, P.C., New Rochelle, N.Y. (John Cherlone andMatthew Russell of counsel), for plaintiff/counterclaim defendant-respondent. Phillips Lytle, LLP, New York, N.Y. (Preston L. Zarlock and Andrew J. Wells), forthird-party defendants-respondents.
In an action to foreclose a mortgage, in which the defendant Nola Williamscounterclaimed for damages, inter alia, for breach of fiduciary duty and violation ofGeneral Business Law § 349, and commenced a third-party action for similarrelief, the defendant Nola Williams appeals, as limited by her brief, from stated portionsof an order of the Supreme Court, Orange County (Onofry, J.), dated April 5, 2012,which, inter alia, granted the third-party defendants' motion for summary judgmentdismissing the third-party complaint and granted those branches of the plaintiff's motionwhich were for summary judgment dismissing her third and eighth counterclaims.
Ordered that the order is affirmed insofar as appealed from, with one bill of costspayable by the appellant to the plaintiff and the third-party defendants appearingseparately and filing separate briefs.
In January 2007, the decedent, Freddie Williams, refinanced his home throughBeneficial Homeowner Service Corporation (hereinafter Beneficial). At the closing, healso filled out an application for a mortgage life insurance policy through First CentralNational Life Insurance Company of New York (hereinafter First Central). A noticeprovided to the decedent at the closing stated: "If your application is approved, yourinsurance is effective on the date of your application. Within 30 days of the date of yourapplication, subject to receipt of satisfactory evidence of insurability, a certificate ofinsurance will be delivered to you. Your application is considered approved uponreceipt of your certificate of insurance . . . If your application is notapproved any premium you paid will be refunded to you or credited to your account.Insurance benefits summarized below will apply only if your application for insurance isapproved" (emphasis added). Beneficial and First Central are subsidiaries of HSBCFinance Corporation (hereinafter HSBC).[*2]
The decedent answered "no" on his insuranceapplication when asked if he had ever been diagnosed with any of 12 specific medicalconditions, even though he had in fact been diagnosed with several of those conditions.When First Central checked the decedent's name in a database used by insurancecompanies, it discovered that the decedent may have withheld information about hishealth. First Central sent him several letters seeking additional health-relatedinformation, but the decedent did not respond. Accordingly, no certificate of insurancewas ever issued to the decedent, although premiums were collected. The decedent diedon July 2, 2007.
Upon the decedent's death, First Central denied that a life insurance policy was ineffect. When no mortgage payments were made following the decedent's death,Beneficial commenced the instant action to foreclose the mortgage against, amongothers, the decedent's widow, the defendant Nola Williams (hereinafter the appellant), inher capacity as the decedent's heir. The appellant counterclaimed against Beneficial, andcommenced a third-party action against First Central and HSBC, alleging, inter alia,breach of fiduciary duty and violation of General Business Law § 349.
The property has since been sold and the foreclosure action discontinued. Theplaintiff moved for summary judgment dismissing the appellant's counterclaims, and thethird-party defendants moved for summary judgment dismissing the third-partycomplaint.
The third-party defendants established, prima facie, that no insurance coverage wasever in effect, and the appellant failed to raise a triable issue of fact in opposition. Withrespect to the appellant's allegations that the third-party defendants breached a fiduciaryduty to the appellant based upon their handling of the decedent's insurance premiums, thethird-party defendants established, prima facie, that, since the premiums were returned tothe appellant, the appellant sustained no damages (see Guarino v North Country Mtge. Banking Corp., 79 AD3d805, 807 [2010]). Further, Beneficial established, prima facie, that it owed nofiduciary duty to the appellant (see Baumann v Hanover Community Bank, 100 AD3d814, 817 [2012]). In response, the appellant failed to raise a triable issue of fact.
A cause of action to recover damages pursuant to General Business Law § 349has "three elements: first, that the challenged act or practice was consumer-oriented;second, that it was misleading in a material way; and third, that the plaintiff sufferedinjury as a result of the deceptive act" (Stutman v Chemical Bank, 95 NY2d 24,29 [2000]). Here, the plaintiff and the third-party defendants established prima facie thatthe terms of the insurance application were fully disclosed, and no materially misleadingstatement was made (seeShovak v Long Is. Commercial Bank, 50 AD3d 1118, 1120 [2008]; Lum v New Century Mtge.Corp., 19 AD3d 558, 559 [2005]). In opposition, the appellant failed to raise atriable issue of fact.
Accordingly, the Supreme Court properly granted the third-party defendants' motionfor summary judgment dismissing the third-party complaint and granted those branchesof the plaintiff's motion which were for summary judgment dismissing the appellant'sthird and eighth counterclaims.
The appellant's remaining contentions are without merit. Skelos, J.P., Lott, Cohenand Hinds-Radix, JJ., concur.
Motion by the third-party defendants-respondents to dismiss an appeal from an orderof the Supreme Court, Orange County, dated April 5, 2012, on the ground that theappellant waived her right to appeal by accepting the benefit of the order dated April 5,2012, without restriction. By decision and order on motion of this Court dated March 19,2013, the motion was held in abeyance and referred to the panel of Justices hearing theappeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the argument of the appeal, it is
Ordered that the motion is denied. Skelos, J.P., Lott, Cohen and Hinds-Radix, JJ.,concur.