Pericon v Ruck, 2007 NY Slip Op 32535(U) (N.Y. Sup. Ct. 8/8/2007)

Decision Date08 August 2007
Docket Number0017639/2006.,Motion Cal. No: 23.
Citation2007 NY Slip Op 32535
CourtNew York Supreme Court


Upon the foregoing papers, it is ordered that the motion and cross-motion are disposed of as follows:

Plaintiff Jorge Pericon ("plaintiff") commenced this action for a declaratory judgment and damages on July 30, 2006, for a declaration that an allegedly fraudulent deed is void ab initio. On December 2, 1992, plaintiff and defendant Maria Ruck jointly purchased as tenants in common real property in Jackson Heights, New York. Plaintiff alleges that subsequent thereto, Maria Ruck and Freddy Ruck ("Ruck defendants") obtained a conveyance of the subject property by executing a fraudulent deed which was notarized by defendant Ana Mullane ("Mullane") on April 5, 1993, and recorded on April 22, 1993. Plaintiff alleges that he only became aware of the purported transfer of the property in 2005, and at no point did he appear before defendant Mullane to execute the subject deed. Defendant Mullane moves for an order, pursuant to CPLR §3211(a)(1), (a)(5) and (a)(7), dismissing plaintiffs complaint, upon the grounds that there is a defense based upon documentary evidence, the action is barred by the statute of limitations and the complaint fails to state a cause of action.1 The Ruck defendants move for an order, pursuant to CPLR §3212, granting them summary judgment and for an award of costs, disbursements and reasonable attorney's fees.

With respect to the relief sought by defendant Mullane, "`[a] motion pursuant to CPLR 3211(a)(1), to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiffs factual allegations, thereby conclusively establishing a defense as a matter of law (citations omitted)." Ruby Falls, Inc. v. Ruby Falls Partners, LLC, 39 A.D.3d 619 (2nd Dept. 2007). "In order to prevail on a motion to dismiss pursuant to CPLR 3211(a)(1), the document relied upon must conclusively dispose of the plaintiffs claim [see, Sammarco Garden Ctr. v. Sammarco, 173 A.D.2d 456, 570 N.Y.S.2d 80 (2nd Dept. 1991); Greenwood Packing Corp. v. Associated Tel. Design, 140 A.D.2d 303, 527 N.Y.S.2d 811 (2nd Dept. 1988)]." Mest Management Corp. v. Double M Management Co., Inc., 199 A.D.2d 479, 480 (2nd Dept. 1993); see also, New York Schools Ins. Reciprocal v. Gugliotti Associates, Inc., 305 A.D.2d 563 (2nd Dept. 2003). Here, defendant Mullane proffers the evidence attached to plaintiff's pleadings, to wit, the mortgage executed by plaintiff on December 2, 1992 and the subject deed purportedly signed by plaintiff on April 5, 1993. Defendant Mullane argues, quite conclusory, that plaintiffs signature on the mortgage matches the signature from the disputed deed, thereby proving that plaintiff was present at the time that defendant Mullane notarized the deed. Notwithstanding this contention, defendant Mullane's proffered documentary evidence does not conclusively dispose of this action. Plaintiff has claimed that the signature on the deed was obtained through improper means, and this evidence fails to refute plaintiff's contention and passport entry indicating that he was out of the country at the time the deed was notarized. Consequently, as the documentary evidence does not conclusively establish a defense to the asserted claims as a matter of law, that branch of the motion for dismissal, pursuant to CPLR § 3211(a)(1), is denied.

Defendant Mullane also moves to dismiss, pursuant to CPLR § 3211(a)(7). In applying this statutory provision, the pleading is to be afforded a liberal construction, the facts as alleged in the complaint are accepted as true and the plaintiff is afforded the benefit of every possible favorable inference. Nonnon v. City of New York, ___ N.Y.3d ___ (2007); 2007 WL 1827019. AG Capital Funding Partners, L.P. v. State Street Bank and Trust Co., 5 N.Y.3d 582 (2005); Leon v. Martinez, 84 N.Y.2d 83 (1994); Parsippany Const. Co., Inc. v. Clark Patterson Associates, P.C., 41 A.D.3d 805 (2nd Dept.2007); Klepetko v. Reisman, 41 A.D.3d 551, 839 (2nd Dept.2007); Santos v. City of New York, 269 A.D.2d 585 (2nd Dept.2000); Jacobs v. Macy's East Inc., 262 A.D.2d 607 (2nd Dept.1999); Doria v. Masucci, 230 A.D.2d 764 (2nd Dept.1996). "[T]he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 (1977); Gaidon v. Guardian Life Ins. Co. of America, 94 N.Y.2d 330 (1999); Gershon v. Goldberg, 30 A.D.3d 372 (2nd Dept. 2006); Steiner v. Lazzaro & Gregory, P.C., 271 A.D.2d 596 (2nd Dept.2000). The determination to be made is whether the facts as alleged fit within any cognizable legal theory. Leon v. Martinez, supra, 84 N.Y.2d at 88; International Oil Field Supply Services Corp. v. Fadeyi, 35 A.D.3d 372 (2nd Dept. 2006); EBC I, Inc. v. Goldman Sachs & Co., 5 N.Y.3d 11 (2nd Dept. 2005). Here, in viewing the instant complaint in its most favorable light against defendant Mullane, this Court finds there are potential viable claims asserted therein, except as to the first cause of action for fraud.

To plead a prima facie case of fraud, plaintiff must allege representation of a material existing fact, falsity, scienter, deception and injury, and a complaint that does not allege these essential elements of a fraud claim fails to satisfy the specificity and particularity requirements of CPLR 3016(b). See, Fredriksen v. Fredriksen, 30 A.D.3d 370 (2nd Dept.2006); Aranki v. Goldman & Associates, LLP, 34 A.D.3d 510 (2nd Dept.2006); Cohen v. Houseconnect Realty Corp., 289 A.D.2d 277 (2nd Dept. 2001); Barclay Arms, Inc. v. Barclay Arms Associates, 74 N.Y.2d 644, 647 (1989). Each of these essential elements must be supported by factual allegations sufficient to satisfy the requirement of CPLR 3016(b), that the circumstances constituting the wrong shall be stated in detail when a cause of action based upon fraud or breach of trust is alleged. Complaints based on fraud which fail in whole or in part to meet this factual pleading standard have consistently been dismissed. See, Barclay Arms v. Barclay Arms Assocs., supra; Walden Terrace, Inc. v. Broadwall Management Corp., 213 A.D.2d 630 (2nd Dept. 1995).

Here, although the first cause of action against defendant Mullane is not pled with the requisite specificity to meet the CPLR 3016(b) standards for an allegation of fraud, this Court is not convinced that plaintiff does not have a cause of action, notwithstanding the fact that he has not stated one. —This provision requires only that the misconduct complained of be set forth in sufficient detail to clearly inform a defendant with respect to the incidents complained of' (citation omitted)" [Wiesenthal v. Wiesenthal, 40 A.D.3d 1078 (2nd Dept. 2007)], "`[] and is not to be interpreted so strictly as to prevent an otherwise valid cause of action in situations where it may be "impossible to state in detail the circumstances constituting a fraud' (citation omitted)" [Lanzi v. Brooks, 43 N.Y.2d 778, 780 (1977)]. Accordingly, that branch of the motion for dismissal under CPLR § 3211(a)(7), is granted to the extent that the first cause of action as asserted against defendant Mullane hereby is dismissed without prejudice to plaintiff to replead. The cause of action sounding in negligence, however, stands on a different footing.

Defendant Mullane also moves, pursuant to CPLR §3211(5), for dismissal of the second cause of action against her sounding in negligence, upon the ground that it is time-barred. A claim for negligence is governed by a three year statute of limitation (CPLR §214), which, in the case at bar, elapsed in 1996, almost ten years prior to the commencement of this action. Consequently, the negligence claim is time-barred and the second cause of action hereby is dismissed.

With respect to the cross-motion by the Ruck defendants for dismissal, pursuant to CPLR § 3212, upon the grounds that the complaint fails to state a cause of action and is barred by the statute of limitations, summary judgment should be granted when there is no doubt as to the absence of triable issues. See, Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978); Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974); Taft v. New York City Tr. Auth., 193 A.D.2d 503, 505 (1st Dept. 1993). As such, the function of the court on the instant motion is issue finding and not issue determination. See, D.B.D. Nominee, Inc., v. 814 10th Ave. Corp., 109 A.D.2d 668, 669 (2nd Dept. 1985). The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position. See Zuckerman v. City of New York, supra.

Here, a review of the evidence presented by the Ruck defendants, and the contentions raised in opposition to the cross-motion, establish that there are triable issues of fact to be determined which preclude summary judgment. Although this Court acknowledges that plaintiff's pleadings have been inartfully drafted, and indeed are problematic with respect to the particularity requirements of CPLR § 3016, there is certainly an issue of fact with respect to whether there exist a claim of fraud against these defendants. Moreover, —CPLR 3016 (subd. [b]) provides: Where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust, or undue influence, the circumstances constituting the...

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