Izmirligil v. Steven J. Baum, P.C.

• Decision Date: 13 February 2020
• Docket Number: Index No. 612313/15,2016-10837,2016-10838,2016-10839,2017-02071
• Citation: 180 A.D.3d 767,119 N.Y.S.3d 503
• Parties: Arif S. IZMIRLIGIL, etc., Appellant, v. STEVEN J. BAUM, P.C., et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

180 A.D.3d 767

119 N.Y.S.3d 503

Arif S. IZMIRLIGIL, etc., Appellant,

v.STEVEN J. BAUM, P.C., et al., Respondents, et al., Defendants.

2016-10837

2016-10838

2016-10839

2017-02071

Index No. 612313/15

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

Argued—September 19, 2019

February 13, 2020

Dahiya Law Offices LLC, New York, N.Y. (Karamvir Dahiya of counsel), for appellant.

Kaufman Dolowich & Voluck LLP, Woodbury, N.Y. (Brett A. Scher, Andrew A. Lipkowitz, and Jonathan Isaacson of counsel), for respondents Steven J. Baum, P.C., Steven J. Baum, Brian B. Kumiega, and Patricia M. Esdinsky.

Halloran & Sage LLP, White Plains, N.Y. (Joseph G. Fortner, Jr., of counsel), for respondent Pillar Processing, LLC.

Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (David V. Mignardi and Kenneth J. Flickinger of counsel), for respondents Bank of New York Mellon and Bank of New York Mellon, formerly known as Bank of New York, as trustee for Chase Mortgage Finance Trust Series 2006–S2.

Bonchonsky & Zaino, LLP, Garden City, N.Y. (Peter R. Bonchonsky of counsel), for respondent J.P. Morgan Chase Bank, N.A.

ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, CHERYL E. CHAMBERS, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action, inter alia, pursuant to Real Property Law § 329 to cancel of record an assignment of a mortgage, the plaintiff appeals from (1) an order and judgment (one paper) of the Supreme Court, Suffolk County (Mark D. Cohen, J.), dated August 15, 2016, (2) an order and judgment (one paper) of the same court dated September 8, 2016, (3) an order and judgment (one paper) of the same court dated September 13, 2016, and (4) an order and judgment (one paper) of the same court dated October 29, 2016. The order and judgment dated August 15, 2016, inter alia, granted the motion of the defendants Bank of New York Mellon and Bank of New York Mellon, formerly known as Bank of New York, as trustee for Chase Mortgage Finance Trust Series 2006–S2, pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them, and is in favor of those defendants and against the plaintiff dismissing the amended complaint insofar as asserted against those defendants. The order and judgment dated September 8, 2016, granted the motion of the defendants Steven J. Baum, P.C., Steven J. Baum, Brian B. Kumiega, and Patricia M. Esdinsky pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them, and is in favor of those defendants and against the plaintiff dismissing the amended complaint insofar as asserted against those defendants. The order and judgment dated September 13, 2016, granted the motion of the defendant Pillar Processing, LLC, pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against it, and is in favor of that defendant and against the plaintiff dismissing the amended complaint insofar as asserted against that defendant. The order and judgment dated October 29, 2016, inter alia, granted the motion of the defendant J.P. Morgan Chase Bank, N.A., pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against it, and is in favor of that defendant and against the plaintiff dismissing the amended complaint insofar as asserted against that defendant.

ORDERED that the orders and judgments dated August 15, 2016, September 13, 2016, and October 29, 2016, are affirmed; and it is further,

ORDERED that the order and judgment dated September 8, 2016, is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Steven J. Baum, P.C., Steven J. Baum, Brian B. Kumiega, and Patricia M. Esdinsky which was pursuant to CPLR 3211(a) to dismiss the causes of action alleging violations of Judiciary Law § 487 by them and dismissing those causes of action, and substituting therefor a provision denying that branch of the motion; as so modified, the order and judgment dated September 8, 2016, is affirmed, and those causes of action are reinstated; and it is further, ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendants Steven J. Baum, P.C., Steven J. Baum, Brian B. Kumiega, and Patricia M. Esdinsky, and one bill of costs is awarded to the defendants Pillar Processing, LLC, Bank of New York Mellon, Bank of New York Mellon, formerly known as Bank of New York, as trustee for Chase Mortgage Finance Trust Series 2006–S2, and J.P. Morgan Chase Bank, N.A., appearing separately and filing separate briefs, payable by the plaintiff.

In 2006, the plaintiff in the instant action, Arif S. Izmirligil, executed a note in the sum of $1,100,000 in favor of the defendant J.P. Morgan Chase Bank, N.A. (hereinafter Chase), which was secured by a mortgage on certain residential property in Suffolk County. On November 13, 2009, the mortgage was assigned from Chase to the defendant Bank of New York Mellon, formerly known as the Bank of New York, as trustee for Chase Mortgage Finance Trust Series 2006–S2 (hereinafter BNYM as trustee). On November 13, 2009, BNYM as trustee, through its then attorney of record, the defendant Steven J. Baum, P.C., commenced a mortgage foreclosure action against, among others, Izmirligil. Izmirligil defaulted in the foreclosure action.

On November 20, 2015, Izmirligil commenced the instant action, and on February 2, 2016, he filed an amended complaint. As relevant to the instant appeal, the first cause of action of the amended complaint sought to cancel of record the assignment of mortgage pursuant to Real Property Law § 329. The second cause of action of the amended complaint sought to bar BNYM as trustee from making any claim against the subject property. The third, fourth, fifth, and sixth causes of action of the amended complaint alleged violations of Judiciary Law § 487 by the defendants Steven J. Baum, P.C., Steven J. Baum, Brian B. Kumiega, and Patricia M. Esdinsky (hereinafter collectively the Baum defendants). The seventh cause of action of the amended complaint alleged violations of the Racketeer Influenced and Corrupt Organizations Act ( 18 USC § 1961 et seq. ; hereinafter RICO) against BNYM as trustee and the defendant Bank of New York Mellon (hereinafter together the BNYM defendants), as well as Chase, the Baum defendants, and the defendant Pillar Processing, LLC (hereinafter Pillar), an entity that purportedly prepared certain paperwork for the Baum defendants in connection with mortgage foreclosure actions.

The BNYM defendants moved pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. Chase separately moved pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against it. Similarly, the Baum defendants moved pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. Pillar moved pursuant to CPLR 3211(a) to dismiss the RICO cause of action insofar as asserted against it. The Supreme Court issued four orders and judgments, inter alia, granting the separate motions and dismissing the amended complaint insofar as asserted against the moving defendants. Izmirligil appeals.

With regard to the first cause of action, Izmirligil failed to state a cause of action under Real Property Law § 329 against the BNYM defendants and Chase (see CPLR 3211[a][7] ; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts as 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 (see Leon v. Martinez, 84 N.Y.2d at 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). However, "allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration" ( Maas v. Cornell Univ., 94 N.Y.2d 87, 91, 699 N.Y.S.2d 716, 721 N.E.2d 966 [internal quotation marks omitted]; see ...