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Gomez v. Fidelity National Title Insurance Co. of New York

Supreme Court of New York, Second Department

August 28, 2013

Bruce Gomez, appellant,
v.
Fidelity National Title Insurance Company of New York, et al., respondents. Index No. 16249/11

Dennis Marc Reisman, Great Neck, N.Y. (John B. Whelan of counsel), for appellant.

Fidelity National Law Group, New York, N.Y. (Paul Kleidman of counsel), for respondents.

REINALDO E. RIVERA, J.P., PETER B. SKELOS, JOHN M. LEVENTHAL, PLUMMER E. LOTT, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of a title insurance policy, the plaintiff appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Queens County (Markey, J.), entered March 12, 2012, which, inter alia, granted that branch of the defendants' motion which was to dismiss the first cause of action of the amended complaint pursuant to CPLR 3211(a)(1).

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendants moved, inter alia, to dismiss the first cause of action of the amended complaint pursuant to CPLR 3211(a)(1), on the ground that they had a defense founded on documentary evidence. The Supreme Court granted that branch of the defendants' motion.

The Supreme Court properly directed the dismissal of the first cause action of the amended complaint pursuant to CPLR 3211(a)(1). The documentary evidence submitted resolved all factual issues as a matter of law, and conclusively disposed of the claim asserted by the plaintiff (see Leon v Martinez, 84 N.Y.2d 83, 88; Uzzle v Nunzie Ct. Homeowners Assn., Inc., 70 A.D.3d 928, 930; Martin v New York Hosp. Med. Ctr. of Queens, 34 A.D.3d 650; Nevin v Laclede Professional Prods., 273 A.D.2d 453). The documentary evidence established that the plaintiff's cause of action was premised on an incorrect methodology for calculating the measure of his damages (see Yonkers City Post No. 1666, Veterans of Foreign Wars of the U.S. v Josanth Realty Corp., 67 N.Y.2d 1029, 1031; West 90th Owners Corp. v Schlechter, 165 A.D.2d 46, 49; L. Smirlock Realty Corp. v Tit. Guar. Co., 97 A.D.2d 208, 226).

Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was to dismiss the first cause of action of the amended complaint pursuant to CPLR 3211(a)(1).

The plaintiff's remaining contentions are without merit.

RIVERA, J.P., SKELOS, LEVENTHAL and LOTT, JJ., concur.


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