- November 28, 2017
C. Cacciato, New York, NY, for appellant.
Winston & Winston, P.C., New York, NY (Aleksander
Powietrzynski of counsel), for respondent.
C. DILLON, J.P. LEONARD B. AUSTIN SANDRA L. SGROI BETSY
DECISION & ORDER
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.
that the order is affirmed, with costs.
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.
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.
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).
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,
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).
parties' remaining contentions either are without merit
or need not be ...