Opinion
Index Nos. 653378/2020 595627/2023 Motion Seq. Nos. 002 003 NYSCEF Doc. No. 79
09-04-2024
FIDELITY NATIONAL TITLE INSURANCE COMPANY, Plaintiff, v. SKY ABSTRACT CORP., JOSEPH KUNSTLINGER, and NUCHEM ABER, Defendants. JOSEPH KUNSTLINGER, Third-Party Plaintiff, v. NUCHEM ABER, ALEXANDER ABER, NB11168 REALTY LLC, and NATIONWIDE COURT SERVICES, INC., Third-Party Defendants.
Unpublished Opinion
MOTION DATE 09/14/2023, 11/13/2023
DECISION + ORDER ON MOTION
LOUIS L. NOCK, J.S.C.
The following e-filed documents, listed by NYSCEF document numbers (Motion 002) 55, 56, 57, 58, 59, 60, 61,65, and 66 were read on this motion to DISMISS.
The following e-filed documents, listed by NYSCEF document numbers (Motion 003) 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, and 77 were read on this motion to DISMISS.
This action, as alleged by plaintiff, arises out of a failure by defendant Sky Abstract Corp. ("Sky") to timely record a first mortgage insured by plaintiff and issued to defendant Nuchem Aber ("Aber") for a property located in Brooklyn, New York. Plaintiff asserts that Sky's failure to timely record the mortgage allowed Aber to transfer the property to his son Alexander, who obtained a second mortgage on the property, leading to separate litigations, pursuant to which plaintiff was required to pay to settle claims involving the holder of the first mortgage. Further details regarding the facts and circumstances of this action are set forth in the court's decision dated January 18, 2023 (NYSCEF Doc. No. 39), in which the court granted Aber's motion to dismiss the complaint against him.
Approximately six months after the court dismissed Aber from the action, defendant/third-party Joseph Kunstlinger ("Kunstlinger"), the alleged guarantor of plaintiff s agreement with Sky, commenced a third-party action against: Aber; his son; the LLC to which his son sold the property; and Nationwide Court Services Inc. ("Nationwide"). Kunstlinger asserts a single cause of action for indemnification, arguing that Nationwide was contracted to record the first mortgage but failed to do so in a timely manner, enabling the alleged scheme by Aber and his son regarding the conveyance of the property and the second mortgage, and pitting the two mortgage holders against each other while the elder and younger Abers pocketed the profits, as alleged.
Presently before the court are Nationwide's (Mot. Seq. No. 002) and Aber's (Mot. Seq. No. 003) motions to dismiss the third-party complaint. The motions are granted, for the reasons set forth in the moving and reply papers (NYSCEF Doc. Nos. 56, 59, 66 [Seq. 002]; 68, 73, 75 [Seq. 003]) and the exhibits attached thereto, as summarized herein.
At the outset, Kunstlinger has no contractual relationship with any of the third-party defendants. Any liability for indemnification in his favor, therefore, must be based on common law principles. "[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is a separate duty owed the indemnitee by the indemnitor" (Raquet v Braun, 90 N.Y.2d 177, 183 [1997]). "Common-law indemnification is generally available in favor of one who is held responsible solely by operation of law because of his relation to the actual wrongdoer" (McCarthy v Turner Const., Inc., 17 N.Y.3d 369, 375 [2011]).
Here, no relationship of any kind is alleged between Kunstlinger and Nationwide. Nationwide is alleged to have been retained by Sky at plaintiff s behest to file the mortgage; but, assuming, for purposes of deciding the motion, that such an agreement existed between Sky and Nationwide, the only duty imposed would flow from Nationwide to Sky and perhaps to Fidelity. However, Kunstlinger - the individual guarantor of Sky's obligation to plaintiff- is far too attenuated from any duty potentially owed by Nationwide, to require Nationwide to indemnify him. Contrary to Kunstlinger's argument, there must be some duty between the indemnitor and the indemnitee. The cases cited by Kunstlinger are not to the contrary (Mas v Two Bridges Assocs., 75 N.Y.2d 680, 691 [1990] [finding that elevator company must indemnify owner for negligent maintenance claim where elevator company was contracted to maintain the elevator]; D'Ambrosio v City of N.Y., 55 N.Y.2d 454, 463 [1982] [holding that adjoining landowner must indemnify the City where plaintiffs injuries were caused by erection of sidewalk appurtenance installed for landowner's special benefit]).
Turning to the third-party claim against Aber: in the prior decision dismissing the complaint against Aber, this court stated that:
In the present action, Aber owed a duty only to Greenpoint and MERS (before MERS assigned its interest to Greenpoint) after Aber executed a mortgage against the Premises in favor of MERS as nominee of Greenpoint. Aber was never a party to the agreements between Greenpoint and Sky for title insurance, nor between Sky and Plaintiff for the agency agreement. The duty breached was on behalf of Sky which failed to timely record the First Mortgage.
(Decision and Order, NYSCEF Doc. No. 39, at 6.) Kunstlinger is even further removed from any duty owed by Aber than plaintiff is. As Aber owed no duty to Sky, it follows that Aber also owed no duty to Sky's guarantor - Kustlinger.
The mortgagee.
In addition, the third-party claim is functionally identical to the already dismissed claim for indemnification against Aber. Therefore, the third-party claim is barred by the law of the case doctrine (MBF Clearing Corp, v JPMorgan Chase Bank, 189 A.D.3d 546 [1st Dept 2020]; Brown v Wyckoff Hgts. Med. Ctr., 28 A.D.3d 412, 413 [2d Dept 2006] ["Contrary to the conclusion of the Supreme Court, construing the third-party complaint liberally and according Wyckoff the benefit of every possible inference, it fails to state a valid cause of action independent of the previously-dismissed claims for contribution and indemnification"] [internal quotation marks and citations omitted]). Kunstlinger's arguments against the application of the law of the case doctrine here are unavailing.
Accordingly, it is hereby
ORDERED that the motions to dismiss the third-party complaint by third-party defendants Nationwide Court Services Inc. (Mot. Seq. No. 002) and Nuchem Aber (Mot. Seq. No. 003) are granted, and the third-party complaint is dismissed as against those two third-party defendants; and it is further
ORDERED that the third-party action is severed and continued as to third-party defendants Alexander Aber and NB 1168 Realty, LLC; and it is further
ORDERED that the parties shall appear for a status conference on September 25, 2024 at 2:15 PM in Room 1166, 111 Centre Street, New York, New York.
This constitutes the decision and order of the court.