From Casetext: Smarter Legal Research

Chambers v. Executive Mortgage Corp.

Appellate Division of the Supreme Court of New York, Second Department
Jul 8, 1996
229 A.D.2d 416 (N.Y. App. Div. 1996)

Summary

affirming dismissal of negligence claim for lack of duty where plaintiff alleged that defendant appraisers had conducted inaccurate appraisal

Summary of this case from Milligan v. GEICO Gen. Ins. Co.

Opinion

July 8, 1996

Appeal from the Supreme Court, Nassau County (Roncallo, J., Davis, J.).


Ordered, that the orders and judgments are affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The plaintiffs entered into a contract for the sale of their home in Long Beach, New York, for the sum of $300,000. The rider to the contract contained a mortgage contingency clause which provided that if the purchaser did not obtain a commitment for a mortgage loan of not less than $225,000 within a certain time frame, either party could terminate the agreement by prompt notice and the purchaser's deposit would be refunded.

The purchaser timely submitted a mortgage application to the defendant Executive Mortgage Corp. (hereinafter EMC), a mortgage broker. EMC, in turn, hired the defendant Eric T. Reeps Appraisals, Inc. (hereinafter Reeps), to appraise the property. Reeps valued the property at $254,000 and the purchaser sought to cancel the contract. The plaintiffs insisted on another appraisal, and EMC retained the defendant Paul Dyckes, Inc. (hereinafter Dyckes) to conduct another appraisal. When Dyckes appraised the premises at $245,000, EMC notified the purchaser that it did not have a lender who would approve the loan, and the purchaser cancelled the contract with the plaintiffs pursuant to the mortgage contingency clause. The plaintiffs thereupon commenced this action against EMC, Reeps and Dyckes alleging, inter alia, negligence, tortious interference with contractual relations and fraud, based on the alleged inaccurate appraisals.

The Supreme Court properly dismissed the cause of action for negligence and/or negligent misrepresentation, due to the lack of any duty owed by the defendants to the plaintiffs ( see, Prudential Ins. Co. v. Dewey, Ballantine, Bushby, Palmer Wood, 80 N.Y.2d 377, 382, 384; Security Pac. Bus. Credit v. Peat Marwick Main Co., 79 N.Y.2d 695, 703-705; Home Mut. Ins. Co. v. Broadway Bank Trust Co., 53 N.Y.2d 568, 575-576; Ultramares Corp. v Touche, 255 N.Y. 170; see also, Oestreicher v. Simpson, 243 N.Y. 635; Chemical Bank v. National Union Fire Ins. Co., 74 A.D.2d 786; Navarre Hotel Importation Co. v. American Appraisal Co., 156 App. Div. 795, 798).

Moreover, because the plaintiffs failed to plead fraud with sufficient particularity ( see, CPLR 3016 [b]; Fink v. Citizens Mtge. Banking, 148 A.D.2d 578), the Supreme Court properly dismissed that cause of action.

Finally, the Supreme Court properly dismissed the cause of action to recover damages for tortious interference with contractual relations, because no contract was breached and the plaintiffs could not demonstrate the necessary degree of tortious interference with their expectation that the purchaser would receive a loan ( see, e.g., NBT Bancorp v. Fleet/Norstar Fin. Group, 87 N.Y.2d 614; Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94; M.J. K. Co. v. Matthew Bender Co., 220 A.D.2d 488).

The plaintiffs' remaining contention is without merit. Miller, J.P., Ritter, Santucci and Altman, JJ., concur.


Summaries of

Chambers v. Executive Mortgage Corp.

Appellate Division of the Supreme Court of New York, Second Department
Jul 8, 1996
229 A.D.2d 416 (N.Y. App. Div. 1996)

affirming dismissal of negligence claim for lack of duty where plaintiff alleged that defendant appraisers had conducted inaccurate appraisal

Summary of this case from Milligan v. GEICO Gen. Ins. Co.
Case details for

Chambers v. Executive Mortgage Corp.

Case Details

Full title:GRAEME A. CHAMBERS et al., Appellants, v. EXECUTIVE MORTGAGE CORP. et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 8, 1996

Citations

229 A.D.2d 416 (N.Y. App. Div. 1996)
645 N.Y.S.2d 91

Citing Cases

Rotunno v. Stiles

Those causes of action, in effect, alleged a breach of the appraisers' duty to the plaintiffs. Under the…

Riddy v. HSBC USA, Inc.

In opposition, the plaintiff failed to raise a triable issue of fact. Moreover, the Supreme Court should have…