Gawrych v. Astoria Fed. Sav. & Loan

• Decision Date: 01 March 2017
• Parties: Wladyslaw GAWRYCH, respondent, v. ASTORIA FEDERAL SAVINGS AND LOAN, appellant.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 681
48 N.Y.S.3d 450

Wladyslaw GAWRYCH, respondent,
v.
ASTORIA FEDERAL SAVINGS AND LOAN, appellant.

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

March 1, 2017.

48 N.Y.S.3d 452

Cullen and Dykman LLP, New York, NY (Samit G. Patel of counsel), for appellant.

Robert Aronov & Associates, P.C., Richmond Hill, NY (Margarita Rubin of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, ROBERT J. MILLER, and FRANCESCA E. CONNOLLY, JJ.

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Queens County (D. Hart, J.), entered April 20, 2015, which denied its motion pursuant to CPLR 3211(a) to dismiss the complaint and for an award of attorneys' fees and costs pursuant to 22 NYCRR 130–1.1, and, sua sponte, inter alia, deemed the motion to be the defendant's answer pursuant to CPLR 103.

ORDERED that the appeal from so much of the order as, sua sponte, inter alia, deemed the motion to be the defendant's answer pursuant to CPLR 103 is dismissed, as no appeal lies as of right from an order that does not decide a motion made on notice (see CPLR 5701[a][2] ), and leave to appeal from that portion of the order has not been granted (see CPLR 5701[c] ); and it is further,

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the breach of contract cause of action to the extent that it is predicated on the alleged failure to pay insurance and property taxes on the subject premises, keep an accurate record of the plaintiff's escrow account, and provide proper tax documents, and to dismiss the causes of action alleging fraudulent misrepresentation, unjust enrichment, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, violation of General Business Law § 349, and conversion, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements.

The plaintiff commenced this action against the defendant, the former holder of a mortgage on the plaintiff's real property, alleging that the defendant, in servicing the mortgage, improperly imposed legal fees for the preparation of certain documents and failed to pay insurance and property taxes on the property, keep an accurate record of the plaintiff's escrow account, and provide proper tax documents. The complaint asserted causes of action alleging breach of contract, fraudulent misrepresentation, unjust enrichment, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, violation of General Business Law § 349, and conversion. The defendant moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint and for an award of attorneys' fees and costs pursuant to 22 NYCRR 130–1.1. The Supreme Court denied the motion and, sua sponte, inter alia, deemed the motion to be the defendant's answer pursuant to CPLR 103. The defendant appeals.

48 N.Y.S.3d 453

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 913 N.Y.S.2d 668 ; Fontanetta v. John Doe 1 , 73 A.D.3d 78, 898 N.Y.S.2d 569 ). "In order for evidence to qualify as ‘documentary,’ it must be unambiguous, authentic, and undeniable" (Granada Condominium III Assn. v. Palomino, 78 A.D.3d at 996–997, 913 N.Y.S.2d 668, quoting Fontanetta v. John Doe 1, 73 A.D.3d at 84–86, 898 N.Y.S.2d 569 ). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are ‘essentially undeniable,’ would qualify as ‘documentary evidence’ in the proper case" (Fontanetta v. John Doe 1, 73 A.D.3d at 84–85, 898 N.Y.S.2d 569, quoting David D. Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3211:10 at 21–22 [2005 ed.]; see Eisner v. Cusumano Constr., Inc., 132 A.D.3d 940, 941–942, 18 N.Y.S.3d 683 ). Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence (see 25–01 Newkirk Ave., LLC v. Everest Natl. Ins. Co., 127 A.D.3d 850, 851, 7 N.Y.S.3d 325 ; Attias v. Costiera, 120 A.D.3d 1281, 993 N.Y.S.2d 59 ; Cives Corp. v. George A. Fuller Co., Inc., 97 A.D.3d 713, 948 N.Y.S.2d 658 ; Fontanetta v. John Doe 1, 73 A.D.3d at 89, 898 N.Y.S.2d 569 ).

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law[,] a...