Baumann v. Hanover Cmty. Bank

• Decision Date: 21 November 2012
• Citation: 100 A.D.3d 814,2012 N.Y. Slip Op. 07947,957 N.Y.S.2d 111
• Parties: George W. BAUMANN, appellant, v. HANOVER COMMUNITY BANK, respondent.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 814

957 N.Y.S.2d 111

2012 N.Y. Slip Op. 07947

George W. BAUMANN, appellant,

v.HANOVER COMMUNITY BANK, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 21, 2012.

Earl Barrison, New York, N.Y. (Steven M. Barrison and Karline Wilson of counsel), for appellant.

Cullen and Dykman, LLP, Garden City, N.Y. (James G. Ryan and Cynthia A. Augello of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.

In an action, inter alia, to recover damages for breach of a loan commitment, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County(Bucaria, J.), dated June 7, 2011, as granted that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint, and denied his cross motion for summary judgment on the issue of liability on the cause of action to recover damages for breach of the loan commitment.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against the defendant, Hanover Community Bank, to recover damages for breach of a loan commitment, negligent and intentional infliction of emotional distress, and breach of fiduciary duty.The complaint alleges that in April 2010, the defendant issued a loan commitment to the plaintiff and his wife in connection with a residential mortgage, the mortgage closing was held on May 7, 2010, and the plaintiff's wife died on May 12, 2010.The complaint further alleges that on May 13, 2010, when the defendant learned that the plaintiff's wife had died, the defendant refused to fund the loan.In the order appealed from, the Supreme Court, among other things, granted that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint, and denied the plaintiff's cross motion for summary judgment on the issue of liability on the cause of action to recover damages for breach of the loan commitment.

As an initial matter, there is no merit to the defendant's contention that the plaintiff failed to assemble a sufficient record for this Court to reach an informed decision on the merits and provide meaningful appellate review of the order insofar as appealed from ( cf.Lew v. Lew,82 A.D.3d 1171, 920 N.Y.S.2d 230).

On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the complaint a liberal construction ( seeCPLR 3026), “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory”( Leon v. Martinez,84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511;seeNonnon v. City of New York,9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720).However, a court may consider evidentiary material submitted by a defendant in support of a motion to dismiss a complaint pursuant to CPLR 3211(a)(7)( seeCPLR3211[c];Sokol v. Leader,74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153).“When evidentiary materialis considered” on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, “the criterion is whether the [plaintiff] has a cause of action, not whether he[or she] has stated one, and, unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it ... dismissal should not eventuate”( Guggenheimer v. Ginzburg,43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17;seeBasile v. Wiggs,98 A.D.3d 640, 641, 950 N.Y.S.2d 148;Sokol v. Leader,74 A.D.3d at 1182, 904 N.Y.S.2d 153).

Here, the complaint was predicated upon an allegation that the loan was not funded by the defendant.However, the defendant“indisputably” demonstrated “through evidentiary material” that this allegation was “not a fact at all”( Baron v. Galasso,83 A.D.3d 626, 628, 921 N.Y.S.2d 100[internal quotation marks omitted] ), by showing that the loan was, in fact, funded.Therefore, the Supreme Court properly granted that branch of the defendant's motion which was to dismiss the cause of action to recover damages for breach of the loan commitment.For the same reason, the Supreme Court properly denied the plaintiff's cross motion for summary judgment on the issue of liability on this cause of action, as the plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law.

The Supreme Court also properly granted that branch of the defendant's motion which was to dismiss the second cause of action, which was to recover damages for negligent and intentional infliction of emotional distress.With respect to the allegations sounding in negligent infliction of emotional distress, a breach of the duty of care “resulting directly in emotional harm is compensable”( Kennedy v. McKesson Co.,58 N.Y.2d 500, 504, 462 N.Y.S.2d 421, 448 N.E.2d 1332) when the mental injury is “a direct, rather than a consequential, result of the breach”( id. at 506, 462 N.Y.S.2d 421, 448 N.E.2d 1332) and when the claim possesses “some guarantee of genuineness”( Ferrara v. Galluchio,5 N.Y.2d 16, 21, 176 N.Y.S.2d 996, 152 N.E.2d 249;seeOrnstein v. New York City Health & Hosps. Corp.,10 N.Y.3d 1, 6, 852 N.Y.S.2d 1, 881 N.E.2d 1187).Applying these principles, the complaint does not allege the existence of a duty on the part of the defendant to the plaintiff in...