O'Connor v. Dime Sav. Bank of New York, F.S.B.

• Decision Date: 04 October 1999
• Citation: 265 A.D.2d 313,696 N.Y.S.2d 477
• Parties: Gerard O'CONNOR, appellant, v. DIME SAVINGS BANK OF NEW YORK, F.S.B., et al., respondents.
• Court: New York Supreme Court — Appellate Division

Page 477

696 N.Y.S.2d 477

Gerard O'CONNOR, appellant, v. DIME SAVINGS BANK OF NEW YORK, F.S.B., et al., respondents.

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

Oct. 4, 1999.

Ronald J. Chisena, West Hempstead, N.Y., for appellant.

Richard T. Sinrod, North Massapequa, N.Y. (Bernard Jeffrey, respondent pro se, of counsel), for respondents.

LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, FRED T. SANTUCCI and GLORIA GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for fraud, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), entered March 2, 1998, as granted the defendants' motion for summary judgment dismissing the complaint.

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

The plaintiff commenced this action, inter alia, to recover damages for fraud against the defendant Dime Savings Bank of New York, F.S.B., and its attorneys based on an allegation that the defendants filed a false affidavit of service in a foreclosure action in order to obtain a deficiency judgment against him. The Supreme Court properly dismissed the complaint insofar as it alleged a common-law fraud cause of action. Even assuming that the defendants intentionally filed a false affidavit of service, the plaintiff cannot establish justifiable reliance on the alleged misrepresentation, an essential element of a fraud cause of action (see, Manna v. Ades, 237 A.D.2d 264, 655 N.Y.S.2d 412; Lazich v. Vittoria & Parker, 189 A.D.2d 753, 592 N.Y.S.2d 418; Burke v. Owen, 168 A.D.2d 722, 563 N.Y.S.2d 869). Clearly, the plaintiff did not rely on the allegedly false affidavit of service, but retained counsel to contest its validity. Moreover, since the motion for a deficiency judgment was ultimately withdrawn by the defendants with prejudice, the plaintiff cannot establish that he suffered pecuniary damage as a result of any purported reliance on the misrepresentation (see, Wall St. Transcript Corp. v. Ziff Communications Co., 225 A.D.2d 322, 638 N.Y.S.2d 640; Chiarello v. Harold Sylvan, P.C., 161 A.D.2d 948, 557 N.Y.S.2d 517; see also, Nager Elec. Co. v. E.J. Elec. Installation Co., 128 A.D.2d 846, 513 N.Y.S.2d 766).

The Supreme Court properly determined that any cause of action based on Judiciary Law § 487 was time-barred (see, Lefkowitz v. Appelbaum, 258 A.D.2d 563, 685 N.Y.S.2d 460; Kuske v. Gellert & Cutler, 247 A.D.2d 448, 667...