Zelber v. Lewoc
| Decision Date | 29 April 2004 |
| Docket Number | 95108. |
| Citation | 2004 NY Slip Op 03211,6 A.D.3d 1043,776 N.Y.S.2d 134 |
| Parties | JOHN F. ZELBER, Respondent, v. ANTHONY LEWOC et al., Defendants, and ADVANTAGE EQUITY SERVICES, INC., et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Appeal from an order of the Supreme Court (Bradley, J.), entered October 24, 2003 in Ulster County, which, inter alia, denied a motion by defendants Advantage Equity Services, Inc. and First American Title Insurance Company of New York for summary judgment dismissing the complaint against them.
Plaintiff owned real property in Ulster County. According to him, he had an agreement with defendant Anthony Lewoc to improve and market this property and thereafter divide all profits from its sale equally. Prior to any such sale, however, plaintiff transferred all title to Lewoc without retaining any incidents of ownership to himself. This permitted Lewoc to mortgage the property for $140,000 without plaintiff's knowledge or consent and abscond with the proceeds. Plaintiff then commenced this action against Lewoc, the mortgage lender and its assignee, as well as the lender's title insurance company and the title company's agent. At issue on appeal is an order of Supreme Court which, among other things, denied a motion for summary judgment by the title insurance company and its agent.
The complaint contains three causes of action against these two defendants, namely, negligent misrepresentation,* breach of express warranty and breach of contract. Because the underlying basis of this whole dispute is plaintiff's assertion that he was totally unaware of the entire mortgage transaction, each of these causes of action must fail against these particular defendants. Simply stated, since he was not in any way a party to the loan closing, plaintiff could not have been the recipient of any representation, negligent or otherwise.
"A claim for negligent misrepresentation can only stand where there is a special relationship of trust or confidence, which creates a duty for one party to impart correct information to another, the information given was false, and there was reasonable reliance upon the information given" (Hudson Riv. Club v Consolidated Edison Co. of N.Y., 275 AD2d 218, 220 [2000] [citations omitted]). The requisite special relationship has been described as "either actual privity of contract between the parties or a relationship so close as to approach that of privity" (Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 382 [1992]). Here, plaintiff not only lacked a special relationship with the moving defendants, he had no relationship with them of any...
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