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PNC Bank, N.A. v. Steinhardt

Supreme Court of New York, Second Department

March 28, 2018

PNC Bank, N.A., respondent,
v.
Sheri Steinhardt, appellant. Index No. 13475/11

          Argued - November 28, 2017

         D54902 T/htr

          Joseph C. Cacciato, New York, NY, for appellant.

          Winston & Winston, P.C., New York, NY (Aleksander Powietrzynski of counsel), for respondent.

          MARK C. DILLON, J.P. LEONARD B. AUSTIN SANDRA L. SGROI BETSY BARROS, JJ.

          DECISION & ORDER

         Appeal from an order of the Supreme Court, Queens County (Orin R. Kitzes, J.), dated May 29, 2015. The order, in effect, granted that branch of the plaintiffs motion which was pursuant to CPLR 3211(a) to dismiss the counterclaim.

         ORDERED that the order is affirmed, with costs.

         The defendant obtained a loan from Greenpoint Mortgage Funding, Inc., to purchase certain real property, which was secured by a mortgage on the property (hereinafter the first mortgage). Shortly thereafter, the plaintiff and the defendant entered into a home equity line of credit agreement (hereinafter the agreement), and the defendant executed a mortgage on the property, in favor of the plaintiff, securing the payment of the amounts due under the agreement. The plaintiff recorded its mortgage before the first mortgage was recorded.

         The plaintiff subsequently commenced this action to recover sums due pursuant to the agreement, upon the defendant's default in making payments. The defendant answered the complaint and asserted a counterclaim, in effect, to recover damages for negligence based upon the plaintiff's alleged failure to properly and timely agree to subordinate its mortgage to the first mortgage, which she claimed hindered her attempt to obtain a modification of the first mortgage.

          Thereafter, the defendant filed a petition under chapter 7 of the United States Bankruptcy Code (11 USC § 701 et seq.) and received a discharge in bankruptcy. The plaintiff then moved, inter alia, pursuant to CPLR 3211(a) to dismiss the defendant's counterclaim. The Supreme Court granted that branch of the motion, concluding that the counterclaim properly belonged in the Bankruptcy Court.

         Although the Supreme Court erred in concluding that the adjudication of the counterclaim properly belonged in the Bankruptcy Court (see generally Stern v Marshall, 564 U.S. 462), we nevertheless affirm the order on different grounds (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545-546).

         In considering a motion to dismiss pursuant to CPLR 3211(a)(7), a court must accept the facts as alleged in the pleading as true, accord the proponent of the pleading the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 N.Y.2d 83, 87-88; MVB Collision, Inc. v Allstate Ins. Co., 129 A.D.3d 1041, 1042).

         To prevail on a negligence cause of action, a plaintiff must establish the existence of a legal duty, a breach of that duty, proximate causation, and damages. ''Absent a duty of care, there is no breach, and without breach there can be no liability" (Fox vMarshall, 88 A.D.3d 131, 135, citing Pulka v Edelman, 40 N.Y.2d 781, 782). Here, the defendant failed to sufficiently allege that the plaintiff owed her a legal duty to agree to subordinate its mortgage to the first mortgage. Therefore, the counterclaim failed to state a cause of action alleging negligence (see generally MVB Collision, Inc. v Allstate Ins. Co., 129 A.D.3d at 1042).

         The parties' remaining contentions either are without merit or need not be ...


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