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Uzzle v. Nunzie Court Homeowners Association

February 16, 2010

DAMON R. UZZLE, APPELLANT,
v.
NUNZIE COURT HOMEOWNERS ASSOCIATION, INC., ET AL., DEFENDANTS, UNITED GENERAL TITLE INSURANCE COMPANY, ET AL., RESPONDENTS.



Motion by the plaintiff for leave to reargue an appeal from an order of the Supreme Court, Richmond County (Gigante, J.), dated May 29, 2007, which was determined by decision and order of this Court dated October 14, 2008.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

WILLIAM F. MASTRO, J.P., DANIEL D. ANGIOLILLO, RANDALL T. ENG and L. PRISCILLA HALL, JJ.

ON MOTION

(Index No. 103323/06)

DECISION & ORDER

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is granted and upon reargument, the decision and order of this Court dated October 14, 2008 (Uzzle v Nunzie Ct. Homeowners Assn., Inc., 55 AD3d 723), is recalled and vacated, and the following decision and order is substituted therefor: Bernard H. Fishman, New York, N.Y., for appellant. DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Jacob E. Amir of counsel), for respondents United General Title Insurance Company and Newell & Talarico Title Insurance Agency, Inc.Kaufman Borgeest & Ryan LLP, New York, N.Y. (Ariel Michael Furman and R. Evon Howard of counsel), for respondent John C. DiGiovanna.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Richmond County (Gigante, J.), dated May 29, 2007, which granted the motion of the defendants United General Title Insurance Company and Newell & Talarico Title Insurance Agency, Inc., pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them, and granted the motion of the defendant John C. DiGiovanna pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted as against him. Justice Hall has been substituted for Justice Carni (see 22 NYCRR § 670.1[c]).

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting the motion of the defendants United General Title Insurance Company and Newell & Talarico Title Insurance Agency, Inc., pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them and substituting therefor a provision denying that motion, and (2) by deleting the provision thereof granting that branch of the motion of the defendant John C. DiGiovanna which was pursuant to CPLR 3211(a)(7) to dismiss so much of the complaint as alleged that the defendant John C. DiGiovanna committed legal malpractice, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs payable by the defendants United General Title Insurance Company and Newell & Talarico Title Insurance Agency, Inc., to the plaintiff.

The plaintiff retained the defendant John C. DiGiovanna to represent him in a purchase of real property (hereinafter the premises) located along a private road. The contract of sale specified that he would take title to the premises subject to a certain declaration of covenants, restrictions, easements, charges, and liens (hereinafter the declaration).

The plaintiff obtained title insurance from the defendant United General Title Insurance Company through its agent, the defendant Newell & Talarico Title Insurance Agency, Inc. (hereinafter together the title insurance respondents). The policy insured the plaintiff against, among other things, "unmarketability of the title" and lack of a right of access to and from the land. However, the policy excepted from coverage loss or damage arising from the declaration.

After the plaintiff closed title on the property, he brought this action asserting, among other things, that he did not have a legal means of access to his property. The title insurance respondents moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them.

When determining a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading must be afforded a liberal construction (see CPLR 3026; Leon v Martinez, 84 NY2d 83, 87), the facts as alleged in the complaint are accepted as true, the plaintiff is accorded the benefit of every favorable inference, and the court must determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d at 87-88; Cayuga Partners v 150 Grand, 305 AD2d 527). "In assessing a motion under CPLR 3211(a)(7)... a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint," and if the court does so, "the ...


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