Nisari v. Ramjohn

• Decision Date: 21 June 2011
• Citation: 85 A.D.3d 987,2011 N.Y. Slip Op. 05467,927 N.Y.S.2d 358
• Parties: Maria NISARI, et al., plaintiffs-respondents,v.Azard RAMJOHN, et al., defendants,Ridge Abstract Corp., defendant-respondent,Commonwealth Land Title Insurance Company, appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 987
927 N.Y.S.2d 358
2011 N.Y. Slip Op. 05467

Maria NISARI, et al., plaintiffs-respondents,
v.
Azard RAMJOHN, et al., defendants,Ridge Abstract Corp., defendant-respondent,Commonwealth Land Title Insurance Company, appellant.

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

June 21, 2011.

[927 N.Y.S.2d 359]

Lamb & Barnosky, LLP, Melville, N.Y. (Michelle S. Feldman of counsel), for appellant.Salfarlie, Salfarlie & Assoc., P.C., Jamaica, N.Y. (Donald A. Salfarlie of counsel), for plaintiffs-respondents.REINALDO E. RIVERA, J.P., RANDALL T. ENG, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

[85 A.D.3d 987] In an action, inter alia, to recover damages for breach of a title insurance policy, the defendant Commonwealth Land Title Insurance Company appeals from an order of the Supreme Court, Queens County (Golia, J.), dated September 30, 2009, which denied its motion to dismiss the complaint insofar as asserted[85 A.D.3d 988] against it pursuant to CPLR 3211(a)(1) and (7) and granted the plaintiffs' cross motion for leave to serve an amended complaint.

ORDERED that the order is reversed, on the law, with costs, that branch of the motion of the defendant Commonwealth Land Title Insurance Company which was to dismiss the complaint pursuant to CPLR 3211(a)(1) insofar as asserted against it is granted, that branch of the

[927 N.Y.S.2d 360]

motion which was to dismiss the complaint pursuant to 3211(a)(7) is denied as academic, and the plaintiffs' cross motion is denied.

The plaintiffs purchased a parcel of real property (hereinafter the subject property) from the defendants Azard Ramjohn and Vishmani Mohan (hereinafter the sellers). The plaintiffs obtained a title insurance policy (hereinafter the policy) from the defendant Commonwealth Land Title Insurance Company (hereinafter Commonwealth).

The plaintiffs commenced this action against, among others, the sellers, alleging, inter alia, that the subject property was a part of a larger parcel of property owned by the sellers, and that the sellers breached their contract with the defendants by failing to obtain a certificate of occupancy and subdivision approval from certain government agencies prior to the sale. The plaintiffs also asserted two causes of action against Commonwealth. The eleventh cause of action alleged that the plaintiffs were entitled to recover the value of the property from Commonwealth on the ground that Commonwealth “failed to raise an exception in the title report with regard to the lack of proper subdivision of the premises,” and the twelfth cause of action alleged that the title delivered to them was unmarketable.

Commonwealth moved to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a)(1) and (7). In support of its motion, Commonwealth submitted, among other things, the policy. The plaintiffs opposed Commonwealth's motion and cross-moved for leave to amend the complaint to add two additional causes of action against Commonwealth. In support of their position, the plaintiffs submitted, among other things, a certificate and report of title. The Supreme Court denied Commonwealth's motion and granted the plaintiff's cross motion. We reverse.

To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence which forms the basis of the defense must resolve all factual issues as a matter of law and conclusively...