Edelman v. Berman

• Decision Date: 30 June 2021
• Docket Number: Index No. 609410/18,2019–06313
• Citation: 195 A.D.3d 995,151 N.Y.S.3d 123
• Parties: Beila EDELMAN, etc., appellant-respondent, v. Robert BERMAN, et al., defendants-respondents, Sam Singer, et al., respondents-appellants.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 995

151 N.Y.S.3d 123

Beila EDELMAN, etc., appellant-respondent,

v. Robert BERMAN, et al., defendants-respondents,Sam Singer, et al., respondents-appellants.

2019–06313

Index No. 609410/18

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

Argued—May 10, 2021

June 30, 2021

Novak, Juhase & Stern, LLP, Cedarhurst, N.Y. (Alexander Novak of counsel), for appellant-respondent.

Ershowsky P.C. (Michael B. Ershowsky of counsel), for respondents-appellants.

Michael J. Marcellino, Williston Park, NY, for defendant-respondent Robert Berman.

Furman, Kornfeld & Brennan LLP, New York, N.Y. (Andrew S. Kowlowitz and Daniel Butler of counsel), for defendants-respondents Robert Wisnicki and Wisnicki & Associates.

SYLVIA O. HINDS–RADIX, J.P., FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, for rescission of deeds pursuant to Real Property Law § 265–a and to recover damages for fraud and legal malpractice, the plaintiff appeals, and the defendants Sam Singer and Singer Group Corp. cross-appeal, from an order of the Supreme Court, Nassau County (John M. Galasso, J.), entered May 15, 2019. The order, insofar as appealed from, granted that branch of the motion of the defendants Robert Wisnicki and Wisnicki & Associates which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them, and denied the plaintiff's cross motion, inter alia, for summary judgment on the cause of action for rescission of the deeds. The order, insofar as cross-appealed from, denied the motion of the defendants Sam Singer and Singer Group Corp. to direct the plaintiff to pay a certain sum pendente lite for use and occupancy of certain premises.

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting that branch of the motion of the defendants Robert Wisnicki and Wisnicki & Associates which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action to recover damages for legal malpractice and violation of Real Property Law § 265–a insofar as asserted against them, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

In 2006, the plaintiff and the defendant Robert Berman purchased real property located in Woodmere (hereinafter the subject property), which they acquired as joint tenants with a right of survivorship. The subject property was encumbered by a mortgage. The plaintiff and Berman defaulted on their mortgage obligations and a judgment of foreclosure and sale was entered in November 2017. On January 11, 2018, before the foreclosure auction was to be held, the property was sold to the defendant Singer Group Corp. (hereinafter together with the defendant Sam Singer, the Singer defendants). The defendant Haim Goldstein allegedly acted as the real estate broker for the sale. The defendant Robert Wisnicki, as the principal of the defendant Wisnicki & Associates (hereinafter together the Wisnicki defendants), attended the closing, drafted the deeds and other closing documents, and acted as the settlement agent. Following the closing, the plaintiff and her family continued to occupy the property.

Subsequently, the plaintiff commenced the instant action, inter alia, for rescission of the deeds pursuant to Real Property Law § 265–a, and to recover damages for fraud and legal malpractice. The Wisnicki defendants moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them. The Singer defendants separately moved to direct the plaintiff to pay a certain sum pendente lite for her use and occupancy of the subject property. The plaintiff cross-moved for summary judgment on the cause of action for rescission of the deeds and on certain claims against Goldstein.

By order entered May 15, 2019, the Supreme Court, among other things, granted that branch of the Wisnicki defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them, denied the Singer defendants’ separate motion, and denied the plaintiff's cross motion. The plaintiff appeals, and the Singer defendants cross-appeal.

"On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Shah v. Exxis, Inc., 138 A.D.3d 970, 971, 31 N.Y.S.3d 512 ). "Where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed" ( Bodden v. Kean, 86 A.D.3d 524, 526, 927 N.Y.S.2d 137 ).

Applying this standard, the Supreme Court properly granted that branch of the Wisnicki defendants’ motion which was to dismiss the cause of action to recover damages for fraud insofar as asserted against them. "The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages"...