| Sutton v Hafner Valuation Group, Inc. |
| 2014 NY Slip Op 01492 [115 AD3d 1039] |
| March 6, 2014 |
| Appellate Division, Third Department |
| Valerie M. Sutton, Appellant, v Hafner Valuation Group,Inc., et al., Respondents. |
—[*1] Thorn Gershon Tymann & Bonanni, LLP, Albany (Erin Mead of counsel), forrespondents.
McCarthy, J. Appeal from an order of the Supreme Court (McGrath, J.), enteredJanuary 28, 2013 in Rensselaer County, which, among other things, granted defendants'motion to dismiss the complaint and/or for summary judgment dismissing the complaint.
In connection with a partnership and corporate dissolution action, plaintiff retaineddefendant Hafner Valuation Group, Inc. to appraise real property and provide "courtready appraisal reports." Defendant James M. O'Neill,[FN*]an appraiser employed by Hafner Valuation, prepared two appraisal reports for plaintiffand attached his curriculum vitae (hereinafter CV) to each. The CV stated, among otherinformation, that O'Neill was a certified general real estate appraiser, had received a JurisDoctor degree in 1981, had "[l]itigation [c]onsultation [d]eveloped" in 15 listed contextsand was "[q]ualified as [e]xpert [w]itness" in Supreme Court and the Public ServiceCommission. Shortly before O'Neill was to testify as an expert witness at plaintiff's trial,he met with plaintiff's counsel and, upon questioning, disclosed that he was previouslylicensed to practice law but had been disbarred (see Matter of O'Neill, 287 AD2d199 [2001]). Plaintiff decided not to utilize defendants' services for trial, retained anotherappraiser [*2]and requested that defendants refund themoney she had paid them.
After they refused, plaintiff commenced this action alleging tortious interference,fraud, breach of contract and negligence. Defendants answered, apparently one day late,prompting plaintiff to move for a default judgment. Supreme Court denied the motionand deemed the answer timely served nunc pro tunc. Approximately 10 months after theanswer was served, defendants moved to dismiss the complaint and for summaryjudgment dismissing the complaint. Plaintiff cross-moved for summary judgment.Supreme Court denied plaintiff's cross motion and granted defendants' motion,dismissing the complaint against O'Neill for lack of personal jurisdiction, dismissing thetortious interference claim for failure to state a cause of action and dismissing theremaining causes of action on summary judgment grounds. Plaintiff appeals.
Supreme Court erred in dismissing the complaint against O'Neill on personaljurisdiction grounds. Plaintiff did not effectuate proper substituted service on O'Neillbecause she failed to mail a copy of the pleadings to O'Neill after the process server left acopy with the president of Hafner Valuation at O'Neill's place of business (seeCPLR 308 [2]). Despite the error in service and defendants having raised it in theiranswer, O'Neill waived his objection on this ground by failing to move for judgment onthat basis within 60 days of serving the answer (see CPLR 3211 [e]; State Farm Fire & Cas. Co. vFirmstone, 18 AD3d 900, 901-902 [2005]). Thus, he was not entitled todismissal on that ground.
The complaint fails to allege all of the elements of tortious interference with contractor tortious interference with prospective business relations. Plaintiff did not allege thatshe had a contract with any third party that defendants knew about and interfered with,nor that defendants used any wrongful means to secure a competitive advantage over orinflict harm upon plaintiff (seeCarvel Corp. v Noonan, 3 NY3d 182, 189-191 [2004]; NBT Bancorp vFleet/Norstar Fin. Group, 87 NY2d 614, 621-622 [1996]; Dune Deck Owners Corp. vLiggett, 85 AD3d 1093, 1095 [2011]). Accordingly, Supreme Court properlydismissed the tortious interference claim.
Supreme Court properly granted summary judgment to defendants on plaintiff's fraudcause of action. "The elements of fraud include a misrepresentation that is false and thatthe defendant knows is false, made to induce the other party to rely on it, justifiablereliance on the misrepresentation by the other party, and injury" (DerOhannesian v City ofAlbany, 110 AD3d 1288, 1292 [2013], lv denied 22 NY3d 862 [2014]; seeMandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178 [2011]). Contrary toplaintiff's allegations, defendants never represented that O'Neill was a licensed attorney.O'Neill's CV states that he has a Juris Doctor degree, which is a true statement. The Courtof Appeals has held that a person who is not licensed to practice law may identifyhimself or herself "by use of the letters J.D. following his [or her] name . . .[because] [t]he letters identif[y] him [or her] as one who ha[s] successfully completed alaw school curriculum, not as a member of the Bar licensed to practice law" (Matterof Rowe, 80 NY2d 336, 342-343 [1992], cert denied 508 US 928 [1993]).Plaintiff does not allege any other active misrepresentations. An omission or concealmentcan constitute fraud, but only where the defendant had a duty to disclose the material factalleged to be omitted or concealed (see Mandarin Trading Ltd. v Wildenstein, 16NY3d at 179). The record does not disclose any fiduciary duty that would requiredefendants to inform plaintiff that O'Neill—who was hired as a real estateappraiser and litigation consultant, not as an attorney—had been disbarred.Accordingly, no triable issues of fact exist on the fraud cause of action.[*3]
Supreme Court properly dismissed the breach ofcontract cause of action. Initially, plaintiff failed to specify the provisions of the contractthat were allegedly breached (see Trump on the Ocean, LLC v State of New York, 79 AD3d1325, 1326 [2010], lv dismissed and denied 17 NY3d 770 [2011]; Woodhill Elec. v Jeffrey Beamish,Inc., 73 AD3d 1421, 1422 [2010]). The cause of action could be dismissedbased on that error alone (see Woodhill Elec. v Jeffrey Beamish, Inc., 73 AD3dat 1422). Even if we liberally view the complaint as alleging a breach, the only contracthere required defendants to appraise the property and provide reports that would be readyfor court use. Plaintiff does not dispute that O'Neill provided the requested reports.Instead, plaintiff asserts that the appraisal reports were nullified based on O'Neill's statusas a disbarred attorney. The disbarment would be fodder for cross-examination if hetestified, but it does not render his reports inadmissible. O'Neill could have testified, andhe informed plaintiff that he was willing and able to do so. Alternatively, plaintiff couldhave requested that another appraiser employed by Hafner Valuation testify. Whileplaintiff made a strategic choice to seek an appraiser from another company, defendantsestablished that they did not breach the contract and plaintiff failed to raise an issue offact regarding any alleged breach. Thus, the court properly dismissed that cause ofaction.
The negligence or negligent misrepresentation claim could not survive as it is basedon the same alleged wrongful conduct as the breach of contract claim, rendering itduplicative, and defendants have no special relationship or legal duty to plaintiff otherthan their contractual relationship (see Torok v Moore's Flatwork & Founds., LLC, 106 AD3d1421, 1422 [2013]; Fleet Bank v Pine Knoll Corp., 290 AD2d 792, 795[2002]).
Lahtinen, J.P., Garry and Rose, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: In the complaint,plaintiff misspelled O'Neill's name as James M. O'Neil.