Petion v. Uwechue, 2010 NY Slip Op 30576(U) (N.Y. Sup. Ct. 3/15/2010)

Decision Date15 March 2010
Docket NumberMotion Sequence 14.,Motion Sequence 12.,Motion Sequence 10.,Motion Sequence 11.,010578/06.
CourtNew York Supreme Court
PartiesJOUDETTE PETION and DELANGE PETION, Plaintiffs, v. CLARA UWECHUE, MICHAEL JUMBO, DAVID M. GLICK, ESQ., MICHAEL TOPPIN, ESQ., CITY & GUILDS TITLE, AGENCY, INC., AND WMC MORTGAGE CORPORATION, Defendants.

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2010 NY Slip Op 30576(U)
JOUDETTE PETION and DELANGE PETION, Plaintiffs,
v.
CLARA UWECHUE, MICHAEL JUMBO, DAVID M. GLICK, ESQ., MICHAEL TOPPIN, ESQ., CITY & GUILDS TITLE, AGENCY, INC., AND WMC MORTGAGE CORPORATION, Defendants.
010578/06.
Motion Sequence 10.
Motion Sequence 11.
Motion Sequence 12.
Motion Sequence 14.
Supreme Court, Nassau County.
March 15, 2010.

RANDY SUE MARBER, Judge.


Upon the foregoing papers, the Motion (Mot. Seq. No. 10) submitted by the

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attorneys for the Defendant, WMC Mortgage Corporation ("WMC") seeking an order, pursuant to CPLR § 3212, granting summary judgment in favor of WMC dismissing the amended complaint and all cross-claims against it; the Motion (Mot. Seq. No. 11) submitted by the attorneys for the Defendant, Clara Uwechue, seeking an order, pursuant to CPLR § 3212, dismissing the amended complaint as to her; the Cross-motion (Mot. Seq. No. 12) submitted by the attorney for the Defendant, David Glick, Esq., seeking an order, pursuant to CPLR § 3212, dismissing the amended complaint and all cross-claims as to him; and the amended Notice of Cross-motion (Mot. Seq. No. 14) submitted by the attorney for the Defendant, Michael Toppin, Esq., seeking an order pursuant to CPLR § 3212 dismissing the amended complaint and all cross-claims as to him, are determined as hereinafter set forth.

In the within action, a day after a residential real estate closing, the attorney representing both the lending institution and the purchaser issued a stop payment order for the checks cut from the mortgage proceeds and used to fund the purchase price.

On June 5, 2006, the Plaintiffs, Joudete Petion ("Joudete") and Delange Petion ("Delange") executed and delivered a deed conveying the property located at 16 Winthrop Street, Hempstead, New York (the property) to the Defendant, Clara Uwechue ("Uwechue"). According to the complaint, the Defendant, Michael Jumbo ("Jumbo") was the fiance of the Plaintiff, Joudete and the real estate broker who found the buyer for the property. The cause of action against the Defendant, Jumbo (first cause of action) alleges intentional misrepresentation and seeks damages in the amount of $500,000. There is no indication that

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Jumbo was ever served, appeared or interposed an answer. The Defendant, David M. Glick ("Glick") was the attorney who represented the Plaintiffs in the underlying real estate transaction. The Defendant, Michael Toppin ("Toppin") was the attorney who represented the Defendant, Uwechue in the real estate transaction. Toppin also represented the Defendant, WMC at the closing. WMC was the lender who loaned the money to Uwechue to purchase the property. The Defendant, City of Guilds Title Agency ("City") was the title company engaged to insure title for Uwechue.

The cause of action against the Defendant, City (fifth cause of action) alleges that City took steps to record the deed to the property in violation of a prior court order. The Plaintiff seeks damages against City in an amount "less than $1,000,000." There is no indication that City was ever served, appeared or answered. This court has no jurisdiction over City.

In the cause of action against the Defendant, Uwechue (second cause of action), the Plaintiffs allege that a day after the closing Uwechue and her attorney put a stop payment order on checks from the mortgage proceeds given to the Plaintiff toward the purchase of the property and "that defendant Uwechue's failure to pay consideration for the purchase of the property was a material breach whereby the plaintiff had the right to rescind the contract." (¶ 56-57). The Plaintiffs also allege that Uwechue was responsible for the deed to the property to be recorded by the Defendant City in violation of a court order. The Defendant Uwechue interposed three counterclaims against the Plaintiffs. In her first

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counterclaim, she alleges that at the closing the Plaintiffs executed a possession agreement that survived the closing of title and provided that the Defendant Uwechue would be entitled to compensation from the Plaintiffs for their possession of the property as of July 5, 2006 at a rate of $250.00 per day. Defendant Uwechue alleges that based on a $250.00 per day rate, the Plaintiffs are indebted to the Defendant in the sum of $296,750.00 computed from July 5, 2006 through October 4, 2009.

The second counterclaim alleges that the Plaintiffs represented they would satisfy the existing mortgage and all liens on the premises but failed to do so. The third counterclaim alleges that the Plaintiffs continue in wrongful possession of the property without the consent of the Defendant Uwechue. The Defendant Uwechue interposed two cross-claims against her former attorney, the Defendant Toppin. The first cross-claim sounds in legal malpractice as a result of his representation at the closing, i.e., failing to take the proper steps so that she purchased the property with clear title; and failing to insure the sellers would vacate in a timely fashion. The second cross-claim against Toppin alleges that Toppin did not exercise reasonable skill and diligence when, as WMC's attorney, he stopped payment on the checks that were to be used to pay the Plaintiffs' existing mortgage and the balance of the purchase price. Uwechue asserted a cross-claim against the Defendant, City. She alleges City failed to insure that the Plaintiffs prior lien was satisfied and refused to defend her in the within action. She claims entitlement to judgment from City for damages from City's alleged action and/or omissions in failing to insure good and marketable title.

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Uwechue also asserted a cross-claim against the Defendant, WMC, alleging that she executed a note and mortgage at the closing on June 5, 2006, with WMC as the mortgagee, which mortgage was recorded and remains a lien against the property. She alleges the funds were never disbursed and are still in the possession of WMC or its agents.

In the cause of action (third cause of action) against the Defendant, Toppin, the Plaintiffs allege that Toppin's conduct in issuing a stop order payment deprived the Plaintiffs of the consideration due them from the sale of the property and constituted legal malpractice as to them. Toppin crossed-claimed against Co-Defendants Jumbo, Glick and City for indemnification.

The Plaintiffs' cause of action (fourth cause of action) against the Defendant Glick sounds in legal malpractice. Glick cross-claimed against Co-Defendants Jumbo, Uwechue, Toppin, City and WMC for indemnification. The Plaintiffs cause of action (sixth cause of action) against WMC alleges WMC, as principal, failed to control, direct and/or supervise its agent Toppin and "is liable to the plaintiffs for any losses caused by the intentional and/or reckless conduct of the bank attorney, defendant Topin [sic]." (¶ 82, 83). WMC cross-claimed against all co-defendants for indemnification.

It is well settled that summary judgment is a drastic remedy which should not be granted where there is any doubt about the existence of a triable issue of fact. Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395; Bhatti v Roche, 140 A.D.2d 660. It is nevertheless an appropriate tool to weed out meritless claims. Lewis v Desmond, 187 A.D.2d

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797; Gray v Bankers Trust Co. of Albany, N.A., 82 A.D.2d 168. Even where there are some issues in dispute in the case which have not been resolved, the existence of such issues will not defeat a summary judgment motion if, when the facts are construed in the nonmoving party's favor, the moving party would still be entitled to relief. Brooks v Blue Cross of Northeastern New York, Inc., 190 A.D.2d 894.

Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the court, as a matter of law, in directing judgment in its favor (CPLR § 3212[b]), which may include deposition transcripts and other proof annexed to an attorney's affirmation. Olan v Farrell Lines, 64 N.Y.2d 1092. Absent a sufficient showing, the court should deny the motion, irrespective of the strength of the opposing papers. Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851.

If a sufficient prima facie showing is made, however, the burden then shifts to the non-moving party. To defeat a motion for summary judgment the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial. CPLR § 3212(b); see also GTF Marketing, Inc. v Colonial Aluminum Sales, Inc., 66 N.Y.2d 965; Zuckerman v City of New York, 49 N.Y.2d 557. The non-moving party must lay bare all of the facts at its disposal regarding the issues raised in the motion. Mgrditchian v Donato, 141 A.D.2d 513. Conclusory allegations are insufficient (Zuckerman v City of New York, supra,) and the defending party must do more than merely parrot the language of

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