Opinion
Index No. 521946/2021 MS 1 2 4
11-29-2022
CHICAGO TITLE INSURANCE COMPANY, Plaintiff, v. EASTCOR LAND SERVICES, INC. dba EASTCOR NATIONAL TITLE SERVICES, ANTHONY VIA, CECIL WILLIAMS, AND LAKERAM BISSOONDIAL, Defendants. EASTCOR LAND SERVICES, INC. dba EASTCOR NATIONAL TITLE SERVICES, Third-Party Plaintiff, v. TRINA COTTON a/k/a KATRINA COTTON a/k/a TRISH COTTON a/k/a LATRICE GENNEL GRANT, LAW OFFICES OF ABRAHAM HOSCHANDER a/k/a ABRAHAM HOSCHANDER, ESQ., and FIDELITY NATIONAL TITLE GROUP, Third-Party Defendants.
Unpublished Opinion
DECISION AND ORDER
Recitation, as required by CPLR §2219(a), of the papers considered in the review of Plaintiff/Third-Party Defendants' Motions and Defendant-Third-Party Plaintiffs Cross Motion:
Papers
NYSCEF #'s
Order to Show Cause/Notice of Motion and Affidavits/Affirmations Annexed.
36, 37,44, 45, 50
Cross-Motion and Affidavits/Affirmations
85, 86
Answering Affidavits/Affirmations
56
Reply Affidavits/Affirmations
109
Defendant's Memorandum of Law
107
Upon the foregoing cited papers and after virtual oral argument, Plaintiff, CHICAGO TITLE INSURANCE COMPANY ("Chicago Title") moves to dismiss, Defendant Lakeram Bissoondial's ("Bissoondial") first counterclaim pursuant to CPLR § 3211(a)(7) (MS #1);
Chicago Title and Third-Party Defendant, FIDELITY NATIONAL TITLE GROUP ("Fidelity"), move to: (i) dismiss Defendant, EASTCOR LAND SERVICES, INC.'s, ("Eastcor") first, second, and third counter-claims pursuant to CPLR § 3211(a)(1) and (a)(7); and (ii) to dismiss the Third-Party Complaint as against Fidelity (MS #2);
Eastcor cross-moves for leave to amend its counter-claims, and Third-Party Complaint pursuant CPLR§3025(b) (MS #4).
The motions are decided as follows:
Chicago Title's Motion to Dismiss Bissoondial's First Counterclaim (MS #1)
Chicago Title's CPLR § 3211 (a)(7) motion to dismiss Bissoondial's first counter-claim for legal fees and sanctions pursuant to 22 NYCRR 130-1.1 is GRANTED. "New York does not recognize a separate cause of action to impose sanctions pursuant to 22 NYCRR 130-1.1." (Praxis Inti. Corp, v Prime Alliance Group, Ltd., 202 A.D.3d 840, 841 [2d Dept 2022] [internal citations and quotations omitted]). Accordingly, Bissoondial's first counter-claim is dismissed.
Chicago Title's Motion to Dismiss Eastcor's First, Second, and Third Counterclaims (MS #2)
In support of its motion to dismiss Eastcor's declaratory judgment counterclaim, Chicago Title argues that it has a right to seek indemnification pursuant to the agency contract. In opposition, Eastcor contends that it has fulfilled its obligations under the agency contract and owes no duty of indemnification to Chicago Title.
A motion to dismiss a counterclaim for a declaratory judgment should be denied "where a cause of action is sufficient to invoke the court's power to render a declaratory judgment... as to the rights and other legal relations of the parties to a justiciable controversy" (DiGiorgio v 1109-1113 Manhattan Ave. Partners, LLC, 102 A.D.3d 725,728 [2d Dept 2013]).
Here, Defendant's allegations adequately assert a cause of action for a declaratory judgment. Eastcor sufficiently alleges that it fulfilled its obligations under the agency agreement; thus, it invokes the Court's power to render a declaratory judgment that it owes no duty of indemnification. Accordingly, Plaintiff's motion to dismiss the first counterclaim is DENIED.
In support of its motion to dismiss the second counterclaim for breach of contract, Chicago Title argues that Eastcor failed to plead a breach of contract claim. Eastcor, in opposition, contends that Chicago Title breached the contract by commencing the underlying action, and that it suffered damages.
A breach of contract consists of the following elements: "the existence of a contract, the plaintiffs performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach" (Gawrych v Astoria Fed. Sav. &Loan, 148 A.D.3d 681,683 [2d Dept 2017]). Where "evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR § 3211 (a)(7), the question becomes whether the plaintiff has a cause of action." Id.
Here, contrary to Eastcor's argument, Plaintiff's commencement of this action does not constitute a breach of the agency agreement. In fact, the agency agreement includes a fee shifting provision that awards attorney's fees to the prevailing party in litigation (Agency Contract, Plaintiffs Exhibit "E" NYSCEF doc. No, 51). Accordingly, Plaintiffs motion to dismiss the second counterclaim is GRANTED.
In support of its motion to dismiss the third counterclaim for attorney's fees, Plaintiff argues that it is premature to enforce the agency contact's fee shifting provision. It also contends that it is improper to seek this relief in the form of a counterclaim. In opposition, Defendant asserts that its entitlement to attorney's fees cannot be determined in a motion to dismiss.
"Even if plaintiff is entitled to seek attorney fees, costs, and expenses, a claim for attorney fees may not be maintained as separate cause of action" (Bd. of Mgrs. of the Hudson Tower Condominium v Thyssen Krupp El. Corp., 2017 NY Slip Op 30126[U], *4 [Sup Ct, NY County 2017]). Moreover, "[a]n award of attorneys'fees is a form of relief, not an independent cause of action" (Ihg Mgt. [Md.] LLC v W. 44th St. Hotel LLC, 2020 NY Slip Op 31552 [U], *5 [Sup Ct, NY County 2020]).
Here, Eastcor's third counterclaim seeks to enforce the agency contract's fee shifting provision as a cause of action. Accordingly, Plaintiff motion to dismiss the third counterclaim for attorney's fees is GRANTED. .
Fidelity's Motion to Dismiss the Third-Party Complaint (MS #2)
Fidelity's motion to dismiss the third-party complaint against is GRANTED. Fidelity is not a party to the agency contract. Thus, the mere fact that Fidelity issued a pre-litigation demand letter as counsel to Plaintiff is insufficient to support Eastcor's claims for a declaratory judgment against it. Accordingly, the third-party complaint is DISMISSED as against Fidelity.
Eastcor's Cross-Motion to Amend its First and Second Counterclaims and Third Party Complaint (MS #4)
Eastcor's crossmotion to amend its first and second counterclaims and third-party complaint is GRANTED to the extent that the first counterclaim for a declaratory judgment is amended as proposed. All other relief sought is DENIED.
Accordingly, based upon the above, it is, ORDERED, Plaintiffs motion to dismiss Bissondial's first counterclaim (Mot. Seq. #1) is GRANTED.
ORDERED that Plaintiff, Chicago Title and Third-Party Defendant, Fidelity's motion to dismiss the first, second, and third counterclaims, and the third-party complaint as against Fidelity (Mot. Seq. #2) is GRANTED TO THE EXTENT that the second and third counterclaims are DISMISSED; and the Third-Party Complaint is DISMISSED as against Fidelity; and further
ORDERED that Eastcor's cross-motion to amend its first and second counterclaim, and its third-party complaint (Mot. Seq. #4) is GRANTED TO THE EXTENT that the first counterclaim is amended as proposed. All other relief sought is DENIED.
This constitutes the Decision and Order of the Court.