Plaza Home Mortgage, Inc. v. Fidelity National Title Insurance Co.

Appellate Division of the Supreme Court of New York

Plaza Home Mortgage, Inc. v. Fidelity National Title Insurance Co.

2016 NY Slip Op 8890, 145 A.D.3d 1048, 42 N.Y.S.3d 854

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

DecidedDecember 28, 2016

Docket2015-00930

StatusPublished

Cited by1 cases

This text of 2016 NY Slip Op 8890 (Plaza Home Mortgage, Inc. v. Fidelity National Title Insurance Co.) 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

Plaza Home Mortgage, Inc. v. Fidelity National Title Insurance Co., 2016 NY Slip Op 8890, 145 A.D.3d 1048, 42 N.Y.S.3d 854 (N.Y. Ct. App. 2016).

Pincite

Opinion

In an action to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Jaeger, J.), entered December 23, 2014, as denied its motion for summary judgment on the complaint and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant title insurance company established prima *1049 facie that coverage of the plaintiff mortgagee’s loss under the subject title insurance policy was properly denied based on the exclusion in the policy for any loss which was “created, suffered, assumed or agreed to by the Insured Claimant.” The plaintiff wired the funds for the mortgage loans to the escrow account of the attorney for the borrowers with closing instructions to perform certain duties on its behalf as the settlement agent, thereby designating that attorney as its agent. Therefore, the act of the settlement agent in misappropriating the funds he had been directed to use to pay off a prior mortgage was properly imputed to the plaintiff, and therefore, the plaintiff created the loss at issue (see Fidelity Natl. Tit. Ins. Co. of N.Y. v Consumer Home Mtge., 272 AD2d 512, 514 [2000]).

Thus, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint, as it met its prima facie burden of establishing its entitlement to judgment as a matter of law by demonstrating that the plaintiff’s claim of coverage fell within an exclusion of the policy, and in opposition, the plaintiff failed to raise a triable issue of fact (see Property Hackers, LLC v Stewart Tit. Ins. Co., 96 AD3d 818, 819 [2012]). For the same reasons, the plaintiff’s motion for summary judgment was properly denied.

Austin, J.P., Cohen, Maltese and Duffy, JJ., concur.

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In an action to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Jaeger, J.), entered December 23, 2014, as denied its motion for summary judgment on the complaint and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant title insurance company established prima *1049 facie that coverage of the plaintiff mortgagee’s loss under the subject title insurance policy was properly denied based on the exclusion in the policy for any loss which was “created, suffered, assumed or agreed to by the Insured Claimant.” The plaintiff wired the funds for the mortgage loans to the escrow account of the attorney for the borrowers with closing instructions to perform certain duties on its behalf as the settlement agent, thereby designating that attorney as its agent. Therefore, the act of the settlement agent in misappropriating the funds he had been directed to use to pay off a prior mortgage was properly imputed to the plaintiff, and therefore, the plaintiff created the loss at issue (see Fidelity Natl. Tit. Ins. Co. of N.Y. v Consumer Home Mtge., 272 AD2d 512, 514 [2000]).

Thus, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint, as it met its prima facie burden of establishing its entitlement to judgment as a matter of law by demonstrating that the plaintiff’s claim of coverage fell within an exclusion of the policy, and in opposition, the plaintiff failed to raise a triable issue of fact (see Property Hackers, LLC v Stewart Tit. Ins. Co., 96 AD3d 818, 819 [2012]). For the same reasons, the plaintiff’s motion for summary judgment was properly denied.

Austin, J.P., Cohen, Maltese and Duffy, JJ., concur.

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Bluebook (online)

2016 NY Slip Op 8890, 145 A.D.3d 1048, 42 N.Y.S.3d 854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plaza-home-mortgage-inc-v-fidelity-national-title-insurance-co-nyappdiv-2016.

Opinion

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