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Cormier v. Gebo

United States District Court, N.D. New York

September 24, 2014

JUSTIN R. CORMIER, Plaintiff,
v.
MARK G. GEBO; HRABCHAK, GEBO & LANGONE, P.C., Defendants.

DOUGLAS J. ROSE, ESQ., TULLY RINCKEY PLLC, Albany, New York, Attorneys for Plaintiff.

KEVIN E. HULSLANDER, ESQ., DAVID R. DUFLO, ESQ., PHILLIP D. DYSERT, ESQ., SMITH, SOVIK, KENDRICK & SUGENT, P.C., Syracuse, New York, Attorneys for Defendants.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

Plaintiff commenced this legal malpractice action on July 23, 2012, alleging that Defendants negligently breached their professional duty to competently perform certain real estate transactions. See Dkt. No. 1. Presently before the Court is Defendants' motion for summary judgment. See Dkt. No. 27. For the reasons stated herein, the Court grants Defendants' motion for summary judgment.

II. BACKGROUND[1]

Plaintiff Justin R. Cormier is the owner of four parcels of land in the Town of Lyme: (1) a parcel comprised of the Town of Lyme Assessor's Tax Map I.D. Nos. 61.08-1-9.5 and 61.42-2-18.5 ("Parcel 1"); (2) a parcel comprised of the Town of Lyme Assessor's Tax Map I.D. Nos. 61.08-1-9.l and 61.42-2-18.61 ("Parcel 2A"); (3) a parcel comprised of the Town of Lyme Assessor's Tax Map I.D. Nos. 61.08-1-9.6 and 61.42-2-18.62 ("Parcel 2B"); and (4) a parcel comprised of the Town of Lyme Assessor's Tax Map I.D. No. 61.42-2-18.63 ("Parcel 2C"). Dkt. No. 27, Defendants' Statement of Material Facts ("Defs' SOMF") ¶ 10; Dkt. No. 31, Plaintiff's Response to Defendants' Statement of Material Facts ("Plf's SOMF") ¶ 10.

Plaintiff entered into a series of real estate transactions beginning in 2006 and ending in 2009. Defs' SOMF ¶ 11; Plf's SOMF ¶ 11. The details of those transactions are as follows:

Plaintiff purchased Parcel 1 from Golden Crescent Enterprises on or around August 3, 2006[, ] whereby Plaintiff obtained a purchase money and construction loan mortgage from Towne Mortgage Company [("TMC")] in the amount of $230, 000 [("August 2006 Transaction")];
In May 2007, Plaintiff obtained mortgage financing from TMC whereby Plaintiff was leveraging his equity in Parcel 1 to acquire Parcel 2A, Parcel 2B, and Parcel 2C, which at the time of the this transaction were a single, undivided parcel of land [("Parcel 2")] from TMC in the amount of $380, 000 [("May 2007 Transaction")];
In October 2007, Plaintiff obtained mortgage financing to provide construction capital for the development of Parcel 2A, Parcel 2B, and Parcel 2C from TMC in the amount of $350, 000 [("October 2007 Transaction")];
In December 2008, Plaintiff obtained mortgage financing for a construction loan for Parcel 2C from Citizens Bank of Cape Vincent [("CBCV")] in the amount of $177, 000 [("December 2008 Transaction")]; In April 2009, Plaintiff obtained mortgage financing for an additional construction loan on Parcel 2B and Parcel 2C from CBCV in the amount of $65, 000 [("April 2009 Transaction")]; and
In September 2009, Plaintiff obtained mortgage financing for a construction loan for Parcel 2A from CBCV in the amount of $100, 000 [("September 2009 Transaction")].

Defs' SOMF ¶ 11; Plf's SOMF ¶ 11.

Plaintiff's father, Richard Cormier, acted as his business partner and attorney-in-fact on each of the foregoing real estate transactions. Defs' SOMF ¶ 12; Plf's SOMF ¶ 12. Defendants delivered correspondence dated December 19, 2008, to Plaintiff's attorney-in-fact, Richard Cormier, regarding the December 2008 Transaction. This correspondence stated that Defendants represented CBCV, and not Plaintiff, in the December 2008 Transaction. The correspondence was signed by Richard Cormier in his individual capacity and as attorney-in-fact for Plaintiff and Plaintiff's wife, Kelly Cormier, acknowledging that they were not being represented by or relying on Defendants or CBCV in regard to the status of title to the mortgaged property in this transaction. Defs' SOMF ¶ 13; Plf's SOMF ¶ 13. Defendants also delivered correspondence dated April 9, 2009, to Plaintiff's attorney-in-fact, Richard Cormier, regarding the April 2009 Transaction. This correspondence also stated with respect to the April 2009 Transaction, that Defendants represented CBCV, and not Plaintiff, in the April 2009 Transaction. The correspondence was signed by Richard Cormier, in his individual capacity and as attorney-in-fact for Plaintiff, and Kelly Cormier, acknowledging that they were not being represented by or relying on Defendants or CBCV in regard to the status of title to the mortgaged property in this transaction. Defs' SOMF ¶ 14; Plf's SOMF ¶ 14. Finally, Defendants delivered correspondence dated September 4, 2009, to Plaintiff's attorney-in-fact regarding the September 2009 Transaction. This correspondence stated that Defendants represented CBCV, and not Plaintiff, in the September 2009 Transaction. The correspondence was signed by Richard Cormier, as Plaintiff's attorney-in-fact, acknowledging that Plaintiff was not being represented by or relying on Defendants or CBCV in regard to the status of title to the mortgaged property in this transaction. Defs' SOMF ¶ 15; Plf's SOMF ¶ 15.

There is no dispute that Defendants represented Plaintiff in the August 2006 Transaction. Defs' SOMF ¶ 12 (duplicate); Plf's SOMF ¶ 12 (duplicate). Nor is there any dispute that no retainer agreement existed between Plaintiff and Defendants with respect to the each of the subsequent transactions. Defs' SOMF ¶ 16; Plf's SOMF ¶ 16. The parties agree that Plaintiff was not represented by Defendants in the December 2008, April 2009, and September 2009 Transactions. Defs' SOMF ¶ 16; Plf's SOMF ¶ 16.

It is also undisputed that Plaintiff was on active duty as a commissioned officer with the United States Army at all times relevant to this matter. Dkt. No. 30, Plaintiff's Affidavit in Opposition to Motion for Summary Judgment ("Plf's Aff.") ¶ 29; id., Exh. A.

According to Plaintiff, after Defendant Gebo represented him and TMC in the August 2006 Transaction, Plf's Aff. ¶¶ 6-7, "Gebo again undertook to represent me and TMC" in the May 2007 Transaction:

I intended that the second TMC mortgage loan proceeds would be used to discharge the first mortgage on Parcel 1, refinance Parcel 1 with a new mortgage, and provide the cash ...

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