Charney v. Commonwealth Land Title Insurance

215 A.D.2d 152, 625 N.Y.S.2d 911, 1995 N.Y. App. Div. LEXIS 4772

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 1995
• Status: Published

Opinion

Order, Supreme Court, New York County (Walter Schackman, J.), entered on or about February 7, 1994, which, inter alia, granted defendants’ motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.

Plaintiff mortgagee may not recover damages under a mortgage insurance policy where the conditions precedent to coverage have not been met. Here, plaintiff was eventually restored to his original status as first mortgagee. There was no aborted foreclosure sale of the premises accompanied by court order that title was defective or unmarketable. The policy specifically states that these latter conditions must be met prior to any right of recovery under the policy. The claim for negligent title search, which plaintiff’s reply brief states is asserted under the terms of the policy, fails for the same reason. Concur—Sullivan, J. P., Wallach, Nardelli, Williams and Mazzarelli, JJ.