Opinion
Index No. 510889/2021 Motion Seq. Nos. 2 3
08-19-2024
SHARESTATES INVESTMENTS, LLC, Plaintiff, v. REPUBLIC VALUATIONS NY, LLC and VICTOR SCHLESINGER, Defendants,
Unpublished Opinion
PRESENT- HON. LEON RUCHELSMAN
DECISION AND ORDER
Leon Ruchelsman, Judge
The defendant has moved pursuant to CPLR §3211 seeking to dismiss the complaint. The plaintiff has cross-moved pursuant to CPLR §3212 seeking summary judgement. The motions have been opposed respectively. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination.
According to the amended complaint the plaintiff made three loans. The first loan was for $610,000 and was secured by property located at 1566 Dumont Avenue in Kings County. The defendant appraised the property at. $1,115,000. Based upon that appraisal the plaintiff extended the loan. The second loan was for $2,3.13,100 and was secured by property located at 9'5 court Street in Binghamton New York. The defendant appraised the property at $2,100,000. and Value upon' Completion (subject to the. proposed plans) of $4,650,000. Based upon that appraisal the plaintiff extended the loan. The third was for. $1,900,000 and was secured by property located at 2 Titchener place in Binghamton, New York. The defendant appraised the property at $2,465,000. Based upon that appraisal the plaintiff extended the loan.
The amended complaint alleges, the appraisals were all improper and that the plaintiff suffered losses as a result of the defaults. The plaintiff, insists- that if the appraisals' would have been accurate the loans would, never have been extended. A lawsuit was commenced and the plaintiff has asserted causes of action for negligence and professional malpractice and breach of contract for each appraisal. The above noted motions have now been filed.
Conclusions of Law
Where the material facts at issue in a case are in dispute Summary judgment cannot be granted (Zuckerman v. City of New York, 49 N.Y.S.2d 557, 427 N.Y.S.2d 595 [1980]). Generally, it is for the jury, the trier of fact to determine the legal cause of any injury, however, where Only one conclusion may be drawn from the facts then the question of legal cause may be decided by the trial court as a matter of law (Marino v. Jamison, 189 A.D.3d 1021, 136 N.Y.S.3d 324 [2d Dept., 2021).
Thus, to succeed on a motion for summary judgement it is necessary for the movant to make a prima facie showing of an entitlement as a matter of law by offering evidence demonstrating the absence of any material issue of fact (Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). Moreover, a movant cannot succeed upon a motion for summary judgement by pointing to gaps in the opponents case because the moving party must affirmatively present evidence demonstrating, the lack of any questions of fact (Velasquez v. Gomez, 44 A.D.3d 649, 843 N.Y.S.2d 368 [2d Dept., 2007]).
The plaintiff argues that- "even assuming, arguendo, that questions of fact may exist regarding Defendants' liability, the calculation of damages, cannot, be controverted, as it is a matter of basic arithmetic utilizing the formulas set .forth in. the loan documents" (see, Memorandum of Law, pages 2, 3 [NYSCEF Doc. No. 134]). Thus, the plaintiff concedes there may be questions of fact whether the defendant's are liable to the plaintiff. Indeed, such questions of fact exist. Furthermore, there are also questions of fact, whether the plaintiff even, suffered any damages and if the plaintiff did suffer such damages whether those damages were proximately caused by the defendants. The defendants have presented sufficient evidence, raising questions of fact in this, regard. Therefore, the plaintiff's request for a determination about the calculation of damages is simply premature. There need not be any determination regarding damages until it has been determined that damages are owed.
Moreover, there is no merit to the argument that, essentially, an appraisal made is subject to something akin to strict liability, where proof of any damage caused is somehow waived. Rather, "'[a] claim of professional negligence requires proof that.' there was' a departure from the accepted standards of practice and that the departure was a proximate cause of the injury'...The same elements apply to a claim for professional malpractice." (Development Specialists Inc., v. Weiser Realty Advisors- LLC., 2012 WL 242835 [S.D.N.Y. 201.2])., Consequently, the motion seeking partial summary judgement concerning the method of damages calculations is denied.
Turning to the defendant's motion seeking to dismiss, it is well settled that a malpractice claim and a breach of contract claim are duplicative when they are based on the same factual allegations and. .seek, the same damages (Berger &Associates Attorneys P.C. v. Reich, Reich & Reich P.C., 144 A.D.3d 543, 42 N.Y.S.3d 16 [1st Dept., 2316]). In this- case the. allegations, p-f malpractice are .identical to the allegations of breach of contract, namely that the defendants failed to provide proper appraisals and violated Uniform Standards of Professional Appraisal Practice ("USPAP") - Therefore, the motion1 seeking, to dismiss all the malpractice causes of action is granted.
It is well settled that to succeed upon a claim of breach, of contract the plaintiff, must establish the existence of a contract, the plaintiff's performance., the defendant's breach, and resulting damages (Harris v. Seward Park Housing Corp., 79 A.D.3d 425, 913 N.Y.S.2d 161 [1st Dept., 2010]). The motion seeking to dismiss the breach of contract causes of action is denied. There are significant questions of fact whether such breaches occurred and those questions cannot be resolved in summary fashion. The parties are now directed to engage in discovery.
So ordered.