Opinion
11-02-2016
Ramon NEREY, et al., appellants, v. GREENPOINT MORTGAGE FUNDING, INC., et al., defendants, Gina Hyun Soon Park, et al., respondents.
Anadel Canale, P.C., Melville, N.Y., for appellants. L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Anthony P. Colavita of counsel), for respondents.
Anadel Canale, P.C., Melville, N.Y., for appellants.
L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Anthony P. Colavita of counsel), for respondents.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.
In an action, inter alia, to recover damages for fraud, the plaintiffs appeal from an order of the Supreme Court, Queens County (Grays, J.), dated April 23, 2014, which granted the motion of the defendants Gina Hyun Soon Park, Tayseer Razik, and ReMax Universal Real Estate for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed, with costs.
The plaintiffs purchased a single family home in Queens. The defendant Gina Hyun Soon Park (hereinafter Park) acted as the real estate agent and was associated with the defendant ReMax Universal Real Estate (hereinafter ReMax). In connection with their purchase, the plaintiffs obtained two mortgages from the defendant Greenpoint Mortgage Funding, Inc., through the defendant Steven Weiss, mortgage broker of the defendant Mortgage Mall, Inc. The plaintiffs commenced this action against those parties and others, alleging that the defendants engaged in a scheme to defraud them into purchasing a property which they clearly could not afford via misrepresentations as to the purchase price, appraisal value of the home, and terms of the mortgage. Park, the defendant Tayseer Razik, and ReMax (hereinafter collectively the ReMax defendants) moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted the motion, and the plaintiffs appeal.
The Supreme Court properly granted those branches of the ReMax defendants' motion which were for summary judgment dismissing the causes of action alleging fraud insofar as asserted against them. “To establish fraud, a plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by the defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance, and injury” (Curtis–Shanley v. Bank of Am., 109 A.D.3d 634, 634, 970 N.Y.S.2d 830 ; see Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421, 646 N.Y.S.2d 76, 668 N.E.2d 1370 ; New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318, 639 N.Y.S.2d 283, 662 N.E.2d 763 ). Here, the ReMax defendants established their prima facie entitlement to judgment as a matter of law on the first cause of action by demonstrating that there was no misrepresentation as to the purchase price of the property (see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). In opposition, the plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).
The ReMax defendants established their prima facie entitlement to judgment as a matter of law on the second cause of action, alleging misrepresentation as to the mortgage terms, by demonstrating that Park acted as the seller's agent and had no involvement in setting the terms of the mortgages. “Absent a present intent to deceive, a statement of future intentions, promises or expectations is not actionable as fraud” (Lane v. McCallion, 166 A.D.2d 688, 690, 561 N.Y.S.2d 273 ). Further, where the alleged misrepresentation concerns a future matter completely beyond the defendant's control and outside of the defendant's particular knowledge, reliance on the alleged misrepresentation is not justifiable (see Stangel v. Zhi Dan Chen, 74 A.D.3d 1050, 1052–1053, 903 N.Y.S.2d 110 ; F.A.S.A. Constr. Corp. v. Degenshein, 47 A.D.3d 877, 879, 850 N.Y.S.2d 612 ). The plaintiffs allege that Park had a present intent to deceive them concerning the mortgage terms and intentionally organized the parties and controlled the transaction. However, in opposition to the motion, they relied on mere surmise, suspicion, speculation, and conjecture, which are insufficient to defeat a motion for summary judgment (see Fredette v. Town of Southampton, 95 A.D.3d 939, 940, 943 N.Y.S.2d 760 ; Jeansimon v. Lumsden, 92 A.D.3d 640, 641, 937 N.Y.S.2d 869 ; Anesthesia Assoc. of Mount Kisco, LLP v. Northern Westchester Hosp. Ctr., 59 A.D.3d 473, 478, 873 N.Y.S.2d 679 ).
Moreover, the plaintiffs signed mortgage documents at the closing that accurately reflected the mortgage terms. “A party who executes a contract is presumed to know its contents and to assent to them” (Moon Choung v. Allstate Ins. Co., 283 A.D.2d 468, 468, 724 N.Y.S.2d 882 ; see Pimpinello v. Swift & Co., 253 N.Y. 159, 170 N.E. 530 ). “An inability to understand the English language, without more, is insufficient to avoid this general rule” (Holcomb v. TWR Express, Inc., 11 A.D.3d 513, 514, 782 N.Y.S.2d 840 ; see Pimpinello v. Swift & Co., 253 N.Y. 159, 170 N.E. 530 ). It is incumbent upon such parties to make a reasonable effort to have the contract read to them (see Holcomb v. TWR Express, Inc., 11 A.D.3d at 514, 782 N.Y.S.2d 840 ; Kassab v. Marco Shoes 282 A.D.2d 316, 723 N.Y.S.2d 352 ; Sofio v. Hughes, 162 A.D.2d 518, 520, 556 N.Y.S.2d 717 ), and they will be bound by their signatures unless the contents of the document were misread or misrepresented to them (see Pimpinello v. Swift & Co., 253 N.Y. at 163, 170 N.E. 530 ; Golden Stone Trading, Inc. v. Wayne Electro Sys., Inc., 67 A.D.3d 731, 733, 889 N.Y.S.2d 72 ; Cash v. Titan Fin. Servs., Inc., 58 A.D.3d 785, 788, 873 N.Y.S.2d 642 ; Holcomb v. TWR Express, Inc., 11 A.D.3d 513, 782 N.Y.S.2d 840 ). Here, the plaintiffs' submissions demonstrated that, despite having an interpreter present at the closing, they made no effort to have the mortgage documents translated. Accordingly, the plaintiffs failed to raise a triable issue of fact as to whether they justifiably relied on any earlier representations by Park regarding the mortgage terms (see Colasacco v. Robert E. Lawrence Real Estate, 68 A.D.3d 706, 708, 890 N.Y.S.2d 114 ; Golden Stone Trading, Inc. v. Wayne Electro Sys., Inc., 67 A.D.3d at 733, 889 N.Y.S.2d 72 ; Daniel Gale Assoc. v. Hillcrest Estates, 283 A.D.2d 386, 724 N.Y.S.2d 201 ).
Although a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort and establish that those actions were part of a common scheme, New York does not recognize an independent tort of conspiracy (see Levin v. Kitsis, 82 A.D.3d 1051, 1052, 920 N.Y.S.2d 131 ; Litras v. Litras, 254 A.D.2d 395, 396, 681 N.Y.S.2d 545 ). Since the underlying fraud claims against the ReMax defendants are not viable, the seventh cause of action alleging conspiracy must fail insofar as asserted against them as well (see Hebrew Inst. for the Deaf & Exceptional Children v. Kahana, 57 A.D.3d 734, 735, 870 N.Y.S.2d 85 ; Truong v. AT & T, 243 A.D.2d 278, 663 N.Y.S.2d 16 ). Accordingly, the Supreme Court properly granted the ReMax defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.
The plaintiffs' remaining contention, raised for the first time on appeal, is not properly before this Court (see Salierno v. City of Mount Vernon, 107 A.D.3d 971, 972, 966 N.Y.S.2d 901 ).