Packes v. Cendant Mortgage Corp.

Appellate Division of the Supreme Court of New York

Packes v. Cendant Mortgage Corp.

19 A.D.3d 386, 796 N.Y.S.2d 135

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 6, 2005

StatusPublished

This text of 19 A.D.3d 386 (Packes v. Cendant Mortgage Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Packes v. Cendant Mortgage Corp., 19 A.D.3d 386, 796 N.Y.S.2d 135 (N.Y. Ct. App. 2005).

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Opinion

In an action, inter alia, to recover damages for fraud in the inducement, the plaintiffs appeal from an order of the Supreme [387]*387Court, Rockland County (Nelson, J.), dated February 3, 2004, which granted the motion of the defendant Cendant Mortgage Corporation pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint, which was converted to a motion for summary judgment.

Ordered that the order is affirmed, with costs.

The claims asserted by the plaintiffs in this action are identical to the claims asserted as counterclaims by the plaintiff James A. Packes, Jr., in a prior action commenced by the defendant Cendant Mortgage Corporation (hereinafter Cendant). Although Cendant was awarded summary judgment in the prior action, the counterclaims were severed and, on the record before us, remain unresolved. Accordingly, Cendant is entitled to dismissal of the present action on the basis that “there is another action pending between [Cendant and Packes] for the same cause[s] of action” (CPLR 3211 [a] [4]).

Furthermore, the court correctly determined that, aside from the plaintiff James A. Packes, Jr., the other named plaintiffs had neither privity nor “a relationship so close as to approach that of privity” necessary to sustain a cause of action sounding in tort against Cendant (Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 382 [1992]). Florio, J.P., Santucci, Mastro and Spolzino, JJ., concur.

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In an action, inter alia, to recover damages for fraud in the inducement, the plaintiffs appeal from an order of the Supreme [387]*387Court, Rockland County (Nelson, J.), dated February 3, 2004, which granted the motion of the defendant Cendant Mortgage Corporation pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint, which was converted to a motion for summary judgment.

Ordered that the order is affirmed, with costs.

The claims asserted by the plaintiffs in this action are identical to the claims asserted as counterclaims by the plaintiff James A. Packes, Jr., in a prior action commenced by the defendant Cendant Mortgage Corporation (hereinafter Cendant). Although Cendant was awarded summary judgment in the prior action, the counterclaims were severed and, on the record before us, remain unresolved. Accordingly, Cendant is entitled to dismissal of the present action on the basis that “there is another action pending between [Cendant and Packes] for the same cause[s] of action” (CPLR 3211 [a] [4]).

Furthermore, the court correctly determined that, aside from the plaintiff James A. Packes, Jr., the other named plaintiffs had neither privity nor “a relationship so close as to approach that of privity” necessary to sustain a cause of action sounding in tort against Cendant (Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 382 [1992]). Florio, J.P., Santucci, Mastro and Spolzino, JJ., concur.

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Bluebook (online)

19 A.D.3d 386, 796 N.Y.S.2d 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/packes-v-cendant-mortgage-corp-nyappdiv-2005.

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