Opinion
12-30-2015
Alyce BARTOLOMEO, etc., et al., appellants, v. FIDELITY NATIONAL TITLE INSURANCE COMPANY OF NEW YORK, et al., respondents.
John Gifford Molloy, P.C., Somers, NY, for appellants. Fidelity National Law Group, New York, N.Y. (Paul Kleidman and Geraldine A. Cheverko of counsel), for respondents.
John Gifford Molloy, P.C., Somers, NY, for appellants.
Fidelity National Law Group, New York, N.Y. (Paul Kleidman and Geraldine A. Cheverko of counsel), for respondents.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ.
In an action to recover damages for breach of a title insurance policy, the plaintiffs appeal from a judgment of the Supreme Court, Putnam County (Nicolai, J.), dated May 27, 2011, which, after a nonjury trial, is in favor of the defendants and against them dismissing the complaint.
ORDERED that the appeal by the plaintiff RJF Builders Corp. is dismissed as abandoned; and it is further,
ORDERED that the judgment is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
Title insurance insures the owner of, and other persons lawfully interested in, "real property and chattels real against loss by reason of defective titles and encumbrances and insur[es] the correctness of searches for all instruments, liens or charges affecting the title to such property" (Insurance Law § 1113[a][18] ; see Property Hackers, LLC v. Stewart Tit. Ins. Co., 96 A.D.3d 818, 818–819, 949 N.Y.S.2d 70 ). Liability of the title insurer to its insured is essentially based on contract law and, as such, "is governed and limited by agreements, terms, conditions and provisions contained in the title insurance policy" (Citibank v.Commonwealth Land Tit. Ins. Co., 228 A.D.2d 635, 637, 645 N.Y.S.2d 826 [quotation marks omitted]; see Property Hackers, LLC v. Stewart Tit. Ins. Co., 96 A.D.3d at 819, 949 N.Y.S.2d 70 ; Locascio v. Mutual of Omaha Ins. Co., 198 A.D.2d 403, 404, 603 N.Y.S.2d 580 ).
Contrary to the contention of the plaintiff Alyce Bartolomeo, the personal representative of the estate of Frank Bartolomeo, the Supreme Court properly determined that Frank Bartolomeo breached a provision of the title insurance policy obligating him to obtain the consent of the insurer, the defendant Fidelity National Title Insurance Company of New York, before settling any claims, thereby barring his claim of coverage (see Vigilant Ins. Co. v. Bear Stearns Cos., Inc., 10 N.Y.3d 170, 174–178, 855 N.Y.S.2d 45, 884 N.E.2d 1044 ; PB Americas Inc. v. Continental Cas. Co., 690 F.Supp.2d 242, 249–50 [S.D.N.Y.] ). In any event, the Supreme Court properly determined that the claim of coverage fell within one of the policy's exclusions (see Property Hackers, LLC v. Stewart Tit. Ins. Co., 96 A.D.3d at 819, 949 N.Y.S.2d 70 ; Fidelity Nat. Tit. Ins. Co. of N.Y. v. Consumer Home Mtge., 272 A.D.2d 512, 708 N.Y.S.2d 445 ; Inavest Enters. v. TRW Tit. Ins. of N.Y., 189 A.D.2d 111, 113, 595 N.Y.S.2d 837 ). Accordingly, the Supreme Court properly dismissed the complaint.
Since the plaintiffs' brief raises no argument with respect to the appeal by the plaintiff RJF Builders Corp., the appeal by that plaintiff must be dismissed as abandoned (see Seaway Capital Corp. v. 500 Sterling Realty Corp., 94 A.D.3d 856, 857, 941 N.Y.S.2d 871 ; Ellner v. Schwed, 48 A.D.3d 739, 740, 851 N.Y.S.2d 373 ).