Third-party defendant Eric Abakporo (Abakporo) moves for an order, pursuant to CPLR 3211 (a) (7), dismissing the complaint of third-party plaintiff Option One Mortgage Co. (Option One) with prejudice. Option One cross-moves for an order, pursuant to CPLR 3215, granting [*2]default judgment against Abakporo.

This case involves an alleged fraudulent deed to the premises at 285 East 55th Street in Brooklyn (premises), and an alleged related money laundering scheme. Defendant Ricardo Mohammed (Mohammed) purchased the premises from plaintiffs, Agnes Alston and Selma Gunther Brown (plaintiffs) on March 23, 2007, but plaintiffs dispute the validity of the sale and argue that the contract of sale and deed are unenforceable.

Option One concurrently provided a mortgage loan to Mohammed to purchase the disputed premises on March 23, 2007. It alleges that it wired the $458,317.03 loan proceeds into the IOLA (i.e., the "interest on lawyer account") of third-party defendant Natasha Pierre (Pierre), who represented Option One as its closing agent on the Mohammed mortgage. Option One further alleges that Pierre simultaneously and improperly represented Mohammed in the real-estate transaction; that Pierre received the wired funds from Option One; and that Pierre issued six checks totaling $415,337.46, each payable to George Alston, husband of plaintiff Agnes Alston. The Alstons held an undivided one-half interest in the disputed premises, but Mr. Alston had died on January 26, 2001

Option One additionally alleges in its fourth cause of action (Id. at ¶ 58) that third-party defendant Abakporo, an attorney, deposited the six checks, endorsed "George Alston" and "Eric Abakporo" to his own IOLA. The present motion to dismiss and cross motion for default judgment concern Option One's third-party complaint against Abakporo.

Abakporo contends that a man purporting to be George Alston, along with his alleged grandson Mark Bailey, appeared at Abakporo's law office on March 26, 2007. Abakporo further alleges that this purported George Alston gave him a New York State Identification Card and the checks which had been issued by Pierre. The purported George Alston allegedly asked Abakporo to deposit the funds into Abakporo's escrow account and to later release the funds to Mark Bailey. However, the individual who identified himself as Mark Bailey then informed Abakporo that he did not have a checking account and requested that Abakporo issue the funds to his alleged brother, Juan Pimentel. Abakporo complied with these requests and issued checks totaling over $400,000 in April 2007 from his escrow account to Juan Pimentel, who has since been indicted for his role in this scheme.

Abakporo, as mentioned earlier, moves for an order, pursuant to CPLR 3211 (a) (7), dismissing Option One's third-party complaint for failing to state a valid cause of action. "In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the facts pleaded are presumed to be true, and the court must afford those allegations every favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory" (Sitar v Sitar, 50 AD3d 667, 669 [2008]). "A motion to dismiss pursuant to CPLR 3211 (a) (7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law" (Sheroff v Dreyfus Corp., 50 AD3d 877, 877 [2008] [internal quotation marks and citation omitted]). Here, Option One's third-party complaint, as more specifically described below, adequately stated claims sounding in conversion, aiding and abetting conversion and attorney malpractice.

Option One's Conversion Claim

Option One alleges that Abakporo "converted to his own use all or part of the proceeds of [*3]the closing checks that were deposited to his IOLA account." "A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession" (Dickinson v Igoni, 76 AD3d 943, 945 [2010] quoting Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 49-50 [2006]). "It is well settled that an action will lie for conversion of money where there is a specific, identifiable fund and an obligation to return or otherwise treat in a particular manner the specific fund in question" (Amity Loans v Sterling Natl. Bank & Trust Co of NY, 177 AD2d 277, 279 [1991] [internal quotation marks and citation omitted]).

If the Option One mortgage at issue in the main complaint is invalidated then Option One can recover the loan funds it wired to Pierre (see Filowick v Long, 201 AD2d 893, 893 [1994]; see also Cruz v Cruz, 37 AD3d 754, 754 [2007]). Therefore, taking the allegations in Option One's third-party complaint regarding the loan funds as true, those funds have since been deposited into Abakporo's IOLA account, and Abakporo has kept "all or part of" such funds. Accordingly, Option One has adequately pleaded a claim against Abakporo sounding in conversion.

Option One's Aiding and Abetting Conversion Claim

Option One also alleges that Abakporo "aided and abetted Pimentel's conversion of the funds paid by Abakporo to Pimentel." "New York law permits a claim for aiding and abetting conversion . . . However, New York does not recognize civil conspiracy to commit a tort, including conversion, as an independent cause of action" (Dickinson, 76 AD3d at 945 [internal quotations and citations omitted]). Hence, "a claim alleging conspiracy to commit a tort stands or falls with the underlying tort" (id.).

Therefore, the viability of Option One's aiding and abetting conversion claim against Abakporo depends upon Option One showing that Pimentel committed the underlying tort of conversion. Option One's claim against Abakporo for aiding and abetting Pimintel's conversion in other words may stand as its success or failure permissibly hinges on Option One showing that Pimintel converted the funds that Option One seeks to recover.

Option One's Attorney Malpractice Claim

Finally, Option One alleges regarding Abakporo that Abakporo "negligently, recklessly or intentionally allowed his attorney IOLA account to be used to launder funds stolen from Option One." "The law in New York does not recognize any liability on the part of an attorney to a nonclient third party for injuries sustained as a result of an attorney's actions in representing his client absent fraud, collusion, or a malicious or tortious act" (Doo v Berger, 227 AD2d 435, 436 [1996]).

Here, Option One has set forth factual allegations bringing this case into one of the quoted exceptions. Option One in other words alleges that Abakporo committed a "tortious act" by converting Option One's funds and/or colluding with Pimintel in the apparent money laundering scheme. Such allegations enable Option One's claim sounding in attorney malpractice to stand. Overall, the adequately pleaded claims for conversion, aiding and abetting conversion and attorney malpractice negate Abakporo's motion to dismiss Option One's third-party complaint.

Option One's Default Judgment Cross Motion

Option One argues that the court should enter a default judgment against Abakporo because he failed to respond to the third-party complaint within the time period afforded by CPLR 320 (a) and/or 3025 (d). CPLR 3215 (a) permits a plaintiff to seek default judgment when "a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial" or for "any other neglect to proceed." CPLR 3025 (d) pertinently provides that "[s]ervice of such an answer or reply shall be made within twenty days after service of the amended or supplemental pleading to which it responds."

Here, service of Option One's third-party summons and verified third-party complaint occurredon Abakporo through service of his wife at Abakporo's place of business on July 28, 2009, and by a July 30, 2009mailing to the same address. Option One then served its verified [*4]amended third-party complaint on Abakporo by first class mail on October 16, 2009. Abakaporo, though, did not serve an answer or pre-answer motion on Option One until November 13, 2009, more than 20 days after having been served with Option One's amended complaint. Abakaporo therefore failed to serve his response within the 20-day time period afforded under CPLR 3025 (d).

However, "the lack of any prejudice to the plaintiff as a result of the relatively short delay, the existence of potentially meritorious defenses, and the public policy favoring the resolution of cases on the merits" (Falla v Keel Holdings, LLC 50 AD3d 844, 845 [2008]), warrant excusing Abakporo's short delay in responding to the amended third-party complaint (see Hense v Baxter, 79 AD3d 814, 815 [2010]). Option One also seeks default judgment against Abakporo for utilizing his own affirmation to support his dismissal motion rather than an affidavit as required by CPLR 2106. However, Abakporo cured this defect by properly filing a reply affidavit.

Accordingly, it is

ORDERED that the motion by third-party defendant Abakporo to dismiss Option One's third party complaint against him is denied; and it is further

ORDERED that the cross motion by third-party plaintiff Option One for default judgment is denied; and it is further

ORDERED that third-party defendant Abakporo shall serve his answer to Option One's third-party complaint within 20 days after service of a copy of this decision and order upon him with notice of entry.

This constitutes the decision and order of the court.

E N T E R

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yvonne lewis, JSC