Summary
affirming dismissal of contract and negligence claims against the title agent because "[p]laintiff's claim that defendants breached their . . . obligations under the title report by providing a negligent survey is conclusively refuted by the [certificate of title], which states, '[t]his certificate shall be null and void . . . upon the delivery of the policy'"
Summary of this case from Ilkowitz v. DurandOpinion
13166, 652370/11.
10-09-2014
TIMAC REALTY, Plaintiff–Appellant, v. G & E Tremont LLC, Defendant, Commonwealth Land Title Insurance Company, et al., Defendants–Respondents.
Kordas & Marinis, LLP, Long Island City (Isidoros Ross Kordas of counsel), for appellant. Fidelity National Law Group, New York (Paul Kleidman of counsel), for Commonwealth Land Title Insurance Company, respondent. Law Office of Lawrence W. Boes, Westbury (Lawrence W. Boes of counsel), for Kensington Title Agency LLC and Kensington Vanguard National Land Services, LLC, respondents.
Kordas & Marinis, LLP, Long Island City (Isidoros Ross Kordas of counsel), for appellant.
Fidelity National Law Group, New York (Paul Kleidman of counsel), for Commonwealth Land Title Insurance Company, respondent.
Law Office of Lawrence W. Boes, Westbury (Lawrence W. Boes of counsel), for Kensington Title Agency LLC and Kensington Vanguard National Land Services, LLC, respondents.
GONZALEZ, P.J., SAXE, DeGRASSE, RICHTER, CLARK, JJ.
Opinion Order, Supreme Court, New York County (Barbara Jaffe, J.), entered April 1, 2013, which granted defendant Commonwealth Land Title Insurance Company's and defendants Kensington Title Agency LLC and Kensington Vanguard National Land Services, LLC's motions to dismiss the complaint as against them, unanimously affirmed, with costs.
The complaint alleges that defendants failed to indemnify and reimburse plaintiff, pursuant to a title insurance policy, for charges on a water meter not disclosed in the title report. However, the policy excepts from coverage liability for “water rates ... which are not shown as existing liens by the public record,” and records of the New York City Department of Environmental Protection show that the subject water charges were not reflected in its records until February 28, 2006, after the insurance policy was issued and after plaintiff closed on the property. This documentary evidence establishes a conclusive defense to this cause of action as a matter of law (see Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 270–271, 780 N.Y.S.2d 593 [1st Dept.2004] ). That the water charges arose from use predating the closing is immaterial (see Giacalone v. City of New York, 104 Misc.2d 405, 428 N.Y.S.2d 792 [Sup.Ct., Queens County 1980] ; see also Metropolitan Life Ins. Co. v. Union Trust Co., 283 N.Y. 33, 27 N.E.2d 225 [1940] ).
Plaintiff's claim that defendants breached their contractual obligations under the title report by providing a negligent survey is conclusively refuted by the title report, which states, “This certificate shall be null and void ... upon the delivery of the policy” (see Citibank v. Chicago Tit. Ins. Co., 214 A.D.2d 212, 217, 632 N.Y.S.2d 779 [1st Dept.1995], lv. dismissed 87 N.Y.2d 896, 640 N.Y.S.2d 879, 663 N.E.2d 921 [1995] ).
Further, title reports function to apprise title insurers of defects in title; they do not serve to warn prospective purchasers of every risk facing the property (see id. at 219, 632 N.Y.S.2d 779 ). If plaintiff relied on the title report for a list of water meters on the property, it did so at its own risk (see id. ). Moreover, plaintiff's attorney stated in an affidavit that he expressed concern about protecting plaintiff against unpaid water charges, but never finalized a new agreement, instead accepting the “assurances of Kensington's representative at the Closing,” and that “plaintiff eventually acquiesced to proceed with the Closing.”
In view of the foregoing, the cause of action seeking to recover the interest levied on the subject water charges must also be dismissed.
We have considered plaintiff's remaining arguments and find them unavailing.