Opinion
No. V18–30–10.
2011-01-10
Chris CASTELLUCCIO, Plaintiff, v. Danielle LOCICERO, Defendant.
Plaintiff, pro se. Defendant, pro se.
Plaintiff, pro se. Defendant, pro se.
DAVID OTIS FULLER, J.
The plaintiff brings this small claims action against the defendant, a bank real estate appraiser, contending that her low appraisal of his home in Chestnut Ridge, New York, at $280,000 in May of 2009, kept him from obtaining a 4.75% mortgage instead of the 5% rate. The plaintiff stated that he needed an appraisal of $302,000 to obtain the lower rate and is seeking damages against the appraiser.
The plaintiff presented evidence that due to the complaint he made against the defendant to the state Division of Licensing after receiving the appraisal, she was charged with and admitted to various violations. The violations did not go to the value of the property and the Division of Licensing made no findings concerning the appraisal amount. The defendant testified that if the violations had not been committed, she still would have come to the same figure of $280,000.
The plaintiff obtained an appraisal from an appraiser with another bank for $380,000 in September, 2009. The defendant testified that four of the six comparables listed in that appraisal were outside Fannie Mae guidelines. In addition, she held to her opinion that the property was worth $280,000.
The first question is whether under these circumstances the appraisal, as plaintiff alleges, kept the plaintiff from obtaining the mortgage rate he sought. If so, the next question is whether the defendant should be held liable for having rendered the appraisal she did.
There are many factors that go into a bank's granting a mortgage commitment and it is not certain that the first bank would have granted the desired mortgage if the appraisal had been higher. The plaintiff testified, though, that he did receive a 5% mortgage from another bank with a $380,000 appraisal at a later date. Assuming, without deciding, that the first bank would have granted the 4.75% mortgage on a higher appraisal, there remains the question of appraiser liability.
The court finds no appraiser liability because the appraisal consists of an opinion, something not actionable. See Mandarin Trading Ltd. v. Wildenstein, 65 AD3d 448 (1st Dept.2009).
Judgment for the defendant.