| Matter of Woodson |
| 2016 NY Slip Op 00698 [136 AD3d 691] |
| February 3, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Christine Woodson, Deceased. CarolynClarke, Appellant; Fidelity National Title Insurance Company, Respondent, et al.,Respondents. |
Annette G. Hasapidis, South Salem, NY, for petitioner-appellant.
Fidelity National Law Group, New York, NY (Jennifer F. Beltrami of counsel), forrespondent-respondent.
In a probate proceeding in which the administrator petitioned to set aside certaindeeds, the administrator appeals, as limited by her brief, from so much of an order of theSurrogate's Court, Kings County (Johnson, S.), dated September 16, 2013, as granted themotion of the respondent Fidelity National Title Insurance Company pursuant to CPLR3211 (a) to dismiss the petition insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
The decedent Christine Woodson died intestate on August 3, 1996, and allegedlywas survived by five children: Carolyn Clarke, Michelle Woodson, Lloyd Woodson,Marvin Woodson, and Norval Woodson. Under the laws of intestacy (see EPTL4-1.1), each of those five children would be entitled to 20% of the net value of thedecedent's estate. The primary asset of the estate was real property located at 2007Strauss Street, Brooklyn. Letters of administration were issued to Carolyn Clarke(hereinafter the administrator) on December 11, 1998, which restrained her from selling,mortgaging, or otherwise encumbering the property, except upon order of the Surrogate'sCourt. On August 18, 2005, Lloyd Woodson and Michelle Woodson, as "heirs at law" ofChristine Woodson, executed a bargain and sale deed purporting to transfer the propertyto Alfanso Gonzalez. The respondent Fidelity National Title Insurance Company(hereinafter Fidelity) issued a title insurance policy in favor of Gonzalez with respect tothe subject property.
Subsequently, Marvin Woodson and Norval Woodson separately executed quitclaimdeeds, both dated December 14, 2005, purporting to transfer the property to Gonzalez. ATerraine Woodson, who was not otherwise disclosed as a relative of the decedent, alsoexecuted a quitclaim deed on December 14, 2005, purporting to transfer the property toGonzalez. The administrator did not give a deed to Gonzalez, nor anyone else, either inher individual capacity or in her capacity as administrator of the estate. Thus, only four ofthe five disclosed children conveyed their share of the [*2]property to Gonzalez. Gonzalez later sold the property toIan Erskine, by way of an August 24, 2006, bargain and sale deed.
On or about December 18, 2006, the administrator filed a petition to set aside thedeeds that purported to transfer the subject property to Gonzalez. The petition allegedthat the property was transferred without the administrator's consent or an order of theSurrogate's Court, and that Fidelity and several other entities "participated in atransaction seeking to defraud the Estate." Fidelity appeared in the proceeding, and aguardian ad litem was appointed to represent the interests of Lloyd Woodson, whosewhereabouts were unknown when the petition was filed. All other parties defaulted.Fidelity moved, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss the petition insofaras asserted against it. The administrator and Lloyd Woodson's guardian ad litem opposedthe motion. The Surrogate's Court granted Fidelity's motion, and the administratorappeals.
"[A] title company hired by one party is not, absent evidence of fraud, collusion, orother special circumstances, subject to suit for negligent performance by one other thanthe party who contracted for its services" (Calamari v Grace, 98 AD2d 74, 83[1983]; see Velazquez vDecaudin, 49 AD3d 712, 716 [2008]; Sabo v Alan B. Brill, P.C., 25 AD3d 420, 421 [2006]).Contrary to the administrator's contention, the petition fails to state a cause of actionagainst Fidelity to recover damages for aiding and abetting fraud (see Winkler v Battery Trading,Inc., 89 AD3d 1016, 1017-1018 [2011]; cf. Ford v Sivilli, 2 AD3d 773, 774-775 [2003]). "To pleada cause of action to recover damages for aiding and abetting fraud," the pleading "mustallege the existence of an underlying fraud, knowledge of the fraud by the aider andabettor, and substantial assistance by the aider and abettor in the achievement of thefraud" (Winkler v Battery Trading, Inc., 89 AD3d at 1017). Here, the petitionconsists of bare, conclusory allegations, without any supporting detail, which do not meetthe specificity requirements of CPLR 3016 (b) to sufficiently plead the existence of anunderlying fraud, knowledge thereof on the part of Fidelity, or substantial assistance inachievement of the fraud (seeGreenberg v Blake, 117 AD3d 683, 684 [2014]; IndyMac Bank, F.S.B. vVincoli, 105 AD3d 704, 707 [2013]; Pace v Raisman & Assoc., Esqs., LLP, 95 AD3d 1185,1189 [2012]; Dumas vFiorito, 13 AD3d 332 [2004]; see also Winkler v Battery Trading, Inc.,89 AD3d at 1017-1018).
The administrator's claim that Michelle Woodson's signature on the deed was aforgery was raised for the first time in opposition to Fidelity's motion and, in any event, isinsufficient to defeat the motion. The signature was acknowledged before a notary, andthe petitioner failed to present an affidavit by Michelle Woodson attesting that she didnot execute the deed or an affidavit from any handwriting expert attesting that thesignature on the deed did not match Michelle Woodson's signature (see generally SonFong Lum v Antonelli, 102 AD2d 258 [1984], affd 64 NY2d 1158 [1985];cf. Moffett v Gerardi, 75AD3d 496 [2010]). Furthermore, while the petitioner purported to submit a copy ofMichelle Woodson's signature for comparison, there was nothing to verify the source ofthat signature and whether it was, in fact, Michelle Woodson's signature.
Accordingly, the Surrogate's Court properly granted Fidelity's motion to dismiss thepetition insofar as asserted against it. In reaching this determination, we note that LloydWoodson's guardian ad litem did not assert a cross claim against Fidelity, and none of theother respondents in the proceeding appeared to assert such a cross claim.
Contrary to the administrator's assertion, the Surrogate's Court did not dismiss thepetition insofar as asserted against the defaulting parties herein. To the contrary, theorder appealed from granted Fidelity's motion to dismiss the petition insofar as assertedagainst it, and set the matter down for an inquest to determine the administrator's right torelief against Lloyd Woodson and the defaulting parties.
The administrator's remaining contentions are unpreserved for appellate review and,in any event, without merit. Dillon, J.P., Dickerson, Hinds-Radix and Maltese, JJ.,concur.