Opinion
17165 Index No. 26025/19E Case No.2021–03403
01-24-2023
Ismay SAMPSON et al., Plaintiffs–Appellants, v. Kadian ROBERTS et al., Defendants–Respondents, MLD Mortgage doing business as the Money Store, Intervenor–Defendant–Respondent.
H. Fitzmore Harris P.C., Bronx (Fitzmore H. Harris of counsel), for appellants. The Law Offices of Robert W. Dapelo, PC, Patchogue (Robert W. Dapelo of counsel), for Kadian Roberts and Marvin Lewis, respondents. FisherBroyles LLP, New York (Mukti N. Patel of counsel), for MLD Mortgage, respondent.
H. Fitzmore Harris P.C., Bronx (Fitzmore H. Harris of counsel), for appellants.
The Law Offices of Robert W. Dapelo, PC, Patchogue (Robert W. Dapelo of counsel), for Kadian Roberts and Marvin Lewis, respondents.
FisherBroyles LLP, New York (Mukti N. Patel of counsel), for MLD Mortgage, respondent.
Kapnick, J.P., Gonza´lez, Mendez, Shulman, Higgitt, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about July 19, 2021, which, to the extent appealed from as limited by the briefs, granted defendants Kadian Roberts and Marvin Lewis's motion to dismiss the complaint and vacate the lis pendens and all temporary orders in this action, and denied plaintiffs' cross motion to hold defendants in civil and criminal contempt, unanimously affirmed, with costs. Defendants’ motion to dismiss the complaint did not violate the single motion rule or the law of the case doctrine, as defendant Roberts's prior pro se motion to dismiss was not argued on the merits and was denied without prejudice to renew (see CPLR 3211[e] ; Rivera v. Board of Educ. of the City of N.Y., 82 A.D.3d 614, 614, 919 N.Y.S.2d 154 [1st Dept. 2011] ). Nor did the grant of plaintiffs’ motion for a preliminary injunction trigger the law of the case doctrine (see Huguenot LLC v. Megalith Capital Group Fund I, LP, 191 A.D.3d 530, 138 N.Y.S.3d 337 [1st Dept. 2021] ; London Paint & Wallpaper Co., Inc. v. Kesselman, 158 A.D.3d 423, 423, 70 N.Y.S.3d 476 [1st Dept. 2018] ).
Plaintiffs' allegations that a mutual friend introduced them to Lewis in April 2014 and to Roberts in February 2015, without more, were insufficient to establish a confidential relationship between the parties (see Byrd v. Brown, 208 A.D.2d 582, 583, 617 N.Y.S.2d 192 [2d Dept. 1994] ; cf. Thomas v. Thomas, 70 A.D.3d 588, 591, 896 N.Y.S.2d 30 [1st Dept. 2010] [finding a confidential relationship where the plaintiff's affidavit established that "shortly before the transaction at issue, the parties were coventurers in a quasi-banking enterprise"]). The lack of any confidential or fiduciary relationship is fatal to plaintiffs' fraudulent concealment claims (see National Union Fire Ins. Co. of Pittsburgh, P.A.. v. Red Apple Group, Inc., 273 A.D.2d 140, 141, 710 N.Y.S.2d 48 [1st Dept. 2000] ). Furthermore, plaintiffs' own allegations that they lived rent free for three years in a home that would have otherwise been foreclosed upon precludes a finding of injury necessary to their claims of fraudulent inducement (see Genger v. Genger, 144 A.D.3d 581, 582, 43 N.Y.S.3d 264 [1st Dept. 2016] ), breach of the duty of good faith and fair dealing (see Canstar v. Jones Constr. Co., 212 A.D.2d 452, 453, 622 N.Y.S.2d 730 [1st Dept. 1995] ), and unjust enrichment (see Georgia Malone & Co., Inc. v. Ralph Rieder, 86 A.D.3d 406, 408, 926 N.Y.S.2d 494 [1st Dept. 2011], affd 19 N.Y.3d 511, 950 N.Y.S.2d 333, 973 N.E.2d 743 [2012] ). Because plaintiffs alleged that they conveyed their property to defendants by way of a short sale to evade foreclosure but intended to retake possession by reverse mortgage after their debt had been extinguished, the motion to dismiss was correctly granted as a matter of public policy (see Flores v. Guambana, 162 A.D.3d 983, 984, 80 N.Y.S.3d 453 [2d Dept. 2018] ). We have considered plaintiffs' remaining arguments and find them unavailing.