Opinion
10566/09.
March 3, 2010.
The following papers read on this motion:
Notice of Motion/Order to Show Cause XXX Cross-Motion Answering Affidavit xxxxx Replying Affidavits XMotion (#007) by defendants Martin Winkler and Eileen Winkler for: (a) an order pursuant to CPLR 3211 (a)(1) and/or 3211 (a)(7) dismissing the complaint against them, or, (b) an order pursuant to CPLR 3212(b) granting summary judgment to defendants Martin Winkler and Eileen Winkler; motion (#008) by defendant MLD Mortgage, Inc. (hereinafter, ("MLD") for an order pursuant to CPLR 2221 renewing defendant MLD's motion to dismiss the complaint pursuant to CPLR 3211(a)(7); and motion (#009) by plaintiff pro se for an order "to reconsider and reinstate" plaintiff's action, are decided as set forth herein.
The complaint by plaintiff pro se appears to allege a claim for legal malpractice against defendant D'Amico Associates, P.L.L.C. (hereinafter, "D'Amico") for its representation of plaintiff in two estate matters and in plaintiff's purchase of a home in Wantagh. The complaint further alleges that defendants Martin and Eileen Winkler, the sellers of the home, vandalized the home before turning it over to plaintiff. Plaintiff's complaint further alleges that defendant Housemaster was negligent in inspecting the home on plaintiff's behalf and that defendant Leonard J. Strandberg and Associates (hereinafter, "Strandberg") negligently surveyed the plaintiff's home. Defendant MLD provided plaintiff with the mortgage she used to purchase the home. It is unclear what plaintiff alleges MLD did, other than plaintiff thought she was getting a "no points" mortgage, but apparently plaintiff was charged points.
By short form order dated September 15, 2009, and entered September 17, 2009 this Court denied plaintiff's motions (#001 and #004) to consolidate this action with another action by plaintiff against D'Amico in District Court. The order also granted defendant Strandberg's motion (#002), defendant D'Amico's motion (#005) and defendant Housemaster's motion (#006) to dismiss the complaint as against each of them, without opposition. Defendant MLD's motion (#003) to dismiss was denied, with leave to renew, as defendant failed to provide proof of service of its motion.
Plaintiff's motion (#009) can best be considered a motion to renew and/or reargue pursuant to CPLR 2221. To the extent plaintiff seeks leave to reargue, such motion must be denied. CPLR 2221(d)(2) provides, in relevant part, that a motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motions, but shall not include any matters of fact not offered on the prior motions. To the extent that plaintiff failed to offer any opposition to any of the defendants' motions to dismiss, this Court cannot be said to have overlooked or misapprehended the matters of fact or law proffered by plaintiff, as there were none, and plaintiff may not include such matters of fact now, having failed to offer them in opposition to defendants' prior motions.
Plaintiff's motion may possibly be properly considered as a motion to renew. CPLR 2221(e) provides, in relevant part, that a motion for leave to renew shall be based upon new facts not offered on the prior motions that would change the prior determination, and shall contain reasonable justification for the failure to present such facts on the prior motion.
With regard to the issue of reasonable justification, plaintiff alleges that she failed to oppose defendants' motions to dismiss because she needed additional time to prepare her opposition to such motions and she misunderstood this Court's procedure for the granting of adjournments on motions. While such adjournment procedure was explained to plaintiff several times, given her pro se status, this Court will excuse plaintiff's failure to properly obtain an adjournment in this instance, and allow her to raise now on renewal the issues she would have originally raised in opposition to defendants' motions to dismiss. With regard to defendant Strandberg's motion (#002) to dismiss, plaintiff does not raise any arguments with regard thereto and therefore, plaintiff's claims against defendant Strandberg shall remain dismissed, as barred by the statute of limitations and by documentary evidence.
With regard to defendant Housemaster's motion (#006) to dismiss, plaintiff argues that defendant Housemaster was negligent in not informing her verbally of alleged problems in her home. However, since defendant Housemaster's inspection of plaintiff's home was performed on April 8, 2006 and plaintiff's action was not commenced until June 2, 2009, any negligence claim plaintiff might have had against defendant Housemaster is barred by the applicable three year statute of limitations. (See, CPLR 214.) Therefore, plaintiff's claims against defendant Housemaster shall remain dismissed.
With regard to defendant D'Amico's motion (#005) to dismiss, at the outset, it should be noted that to the extent plaintiff's claims of legal malpractice concern D'Amico's representation of her prior to June 2, 2006, such claims are barred by applicable three year statute of limitations (see, CPLR 214) since this action was not commenced until the filing of the summons with notice on June 2, 2009. Therefore, all or most of plaintiff's claims concerning D'Amico's legal representation of her concerning her father and her uncle's estates are time barred as it appears that such representation concluded sometime between June 2006 and August 10, 2006. With regard to plaintiff's remaining claims, even affording plaintiff's complaint a liberal construction and affording plaintiff the benefit of every favorable inference as required on such a motion to dismiss, defendant D'Amico has submitted documentary evidence which conclusively establishes its defenses to plaintiff's legal malpractice claims, requiring dismissal of such claims (cf. Walker v Kramer, 63 AD3d 723.) Moreover, to the extent plaintiff also appears to allege causes of action for breach of contract, negligence and fraud against defendant D'Amico, such claims are duplicative of her legal malpractice claim and should similarly be dismissed. (See, Stuart v Kushner, 68 AD3d 974.)
In light of this Court's dismissal of plaintiff's causes of action against D'Amico herein and the District Court's October 20, 2009 dismissal of plaintiff's counterclaims against D'Amico in that action, plaintiff's motion to consolidate is moot, and will neither be reargued nor renewed.
Defendant MLD's original motion (#003) to dismiss was denied for failure to provide proof of service of the motion and defendant MLD now renews such motion (#008). The only references made to defendant MLD in plaintiff's complaint, other than the jurisdictional statement in Paragraph 6 of the complaint, are allegations that defendant D'Amico informed plaintiff there were no points and no rate lock fee for the MLD mortgage. Even affording plaintiff's complaint a liberal construction and accepting all the facts alleged therein to be true, she has failed to make any allegation of wrongdoing by defendant MLD. Moreover, the documentation submitted by both defendants D'Amico and MLD contradicts any claim plaintiff might have possibly had against defendant MLD. Therefore, plaintiff's claims against defendant MLD are dismissed and motion (#008) is granted.
Defendants Martin and Eileen Winkler move (#007) for dismissal or summary judgment herein. The Winkler defendants have established their prima facie entitlement to summary judgment dismissing any possible claim plaintiff might have against them for breach of contract. Pursuant to the contract of sale between the Winklers, as sellers, and D'Elia, as purchaser, the home was sold "as is" and at closing D'Elia accepted a Bargain and Sale deed for the premises. If plaintiff alleges that the Winklers breached the possession agreement executed at closing, she had a contractual obligation to give timely written notice of same, and in the absence of such timely notice she absolutely waived any objection or claim, barring any breach of contract claim against the Winkler defendants now.
Plaintiffs remaining causes of action against the Winkler defendants which plaintiff characterizes as sounding in intentional tort, must also be dismissed. While the Court is required to give the plaintiff the benefit of every favorable inference in deciding a motion to dismiss, the Court is not required to sustain a cause of action based on mere speculation and conjecture, and conclusory allegations which appear to be the basis for plaintiff's tort claims against the Winkler defendants. (See, McHenry v Lawrence, 66 AD3d 650; Riback v Margulis, 43 AD3d 1023.)
Therefore, plaintiff's claims against the Winkler defendants must be dismissed and motion (#007) is granted.
In light of this Court upholding the dismissal of plaintiff's claims against defendants Strandberg, Housemaster and D'Amico and the granting of the motions to dismiss by defendant MLD and the Winkler defendants, no claims remain and plaintiff's action is hereby dismissed.
This order concludes this matter.