[*1]
Kanterakis v Minos Realty I, LLC
2013 NY Slip Op 51258(U) [40 Misc 3d 1221(A)]
Decided on August 1, 2013
Supreme Court, Queens County
Siegal, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on August 1, 2013
Supreme Court, Queens County


Nikolaos Kanterakis, Plaintiff,

against

Minos Realty I, LLC, Emily Kanterakis, Greenpoint Mortgage Funding Inc., Rosedale Lend, LLC and Flushing Savings Bank, FSB, Defendants.




13283/10

Bernice Daun Siegal, J.



Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:

Flushing Savings Bank, FSB ("FSB") moves for summary judgment pursuant to CPLR §3212 dismissing the second amended complaint against FSB.

Facts


Nikolaos Kanterakis' ("Kanterakis") commenced the within action sounding in fraud against multiple defendants but specifically alleging that an FSB mortgage was fraudulently executed on his behalf via a power of attorney by his estranged wife Emily Kanterakis [*2](hereinafter "Emily"). Plaintiff contends that in August of 2002, Emily forged his signature on a Power of Attorney naming Emily as the agent and that Emily utilized the Power of Attorney to secure a Mortgage in plaintiff's name. The mortgage was executed on April 19, 2005 for $400,000 and secured by the property located at 144 01-09 243rd Street. A satisfaction of Mortgage was filed on August 6, 2007, absolving plaintiff of any obligation under the mortgage.

Kanterakis contends that GMF was "fully aware, or should have been fully aware, that the Power of Attorney was forged" at the time it issued the Loan and Mortgage. FSB submits the affidavit of Francis W. Korzekwinski (herein after "Korzekwinski"), Executive Vice President of FSB, who states that FSB did not possess knowledge of the alleged fraud and/or forgery.

Kanterakis asserts three causes of action against FSB in his amended complaint. The first cause of action alleges, that "upon information and belief, the defendant Flushing was at all times relevant hereto fully aware, or should have been fully aware, that the Power of Attorney was forged and void ab initio, and that the mortgage based on the aforesaid forgery was thus void ab initio."

The third cause of action alleges that defendant "Roseland Lend, improperly acting through false authority given thereto by the other defendants, has been collecting, or attempting to collect, rents from the commercial tenants on the Properties." Although plaintiff lumps all defendants together , he does not allege that FSB was involved in the mortgage transaction with Rosedale Lend.

The fourth cause of action seeks a declaratory judgment against all defendants, including FSB, declaring defendant's interests in the Property be deemed invalid and directing that the Power of Attorney, the transfer of the property and the Mortgage be declared null and void ab initio.

FSB's motion for an order pursuant to CPLR §3212 dismissing the complaint against FSB is granted, as more fully set forth below.

Discussion


Summar y judgment motions may be made by any party to an action after the issue has been joined. CPLR 3212 (a). To meet its burden for summary judgment movant must foreclose any genuine issue of material fact showing it is entitled to a judgment as a matter of law. (Bush v. St. Clare's Hosp., 82 N.Y 2d 738 [1993] (reasoning that if a question of fact exists the court is precluded from granting a summary judgment motion); Winegrad v. New York Univ. Med. Center, 64 N.Y 2d 851 [1985]; Zuckerman v. New York, 49 NY2d 557 [1980].) To do so "the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate all material issues of fact from the case." (Winegrad v. New York Univ. Med. Center, 64 N.Y 2d 851 [1985].) If the proponent succeeds, then the burden shifts to the opposing party, who must then demonstrate through admissible evidence that there are material issues of fact sufficient to defeat the motion for summary judgment. (See Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]).

Plaintiff's first cause of action contends that FSB should have uncovered the fraudulent scheme/forgery orchestrated by Emily and therefore should not have made the Mortgage. "The essential elements of a cause of action sounding in fraud are a misrepresentation or a material omission of fact which was false and known to be false by the defendant, made for the purpose of [*3]inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury." (River Ridge Living Center, LLC v. ADL Data Systems, Inc., 98 AD3d 724, 725 [2nd Dept 2012]; Lama Holding Co. v. Smith Barney Inc., 88 NY2d 413 [1996].) "Where a cause of action or defense is based upon ... fraud ... the circumstances constituting the wrong shall be stated in detail." (CPLR §3016(b); Manik v. Citimortgage, Inc., 102 AD3d 929 [2nd Dept 2013].)

FSB has established that Kanterakis' first cause of action fails to set forth any specific facts and any cognizable cause of action as against FSB. Furthermore, Kanterakis failed to allege that FSB made any representation, fraudulent or otherwise, that induced plaintiff to act in reliance thereon, (Duratech Industries, Inc. v. Continental Ins. Co., 21 AD3d 342 [2nd Dept 2005]) and that GMF acted with the required scienter. (Brualdi v. IBERIA, 79 AD3d 959 [2nd Dept 2010].) Lastly, the Mortgage was satisfied on August 6, 2007 absolving plaintiff of any obligations and therefore suffered no damage. (See Middleton v. J.M.A. Const. Co., Inc., 47 AD2d 544 [2nd Dept. 1975](finding plaintiff sustained no damage when lender had not sought to collect on promissory note); Held v. Kaufman, 91 NY2d 425 [2nd Dept. 1998] (dismissing complaint when no injury found from alleged false representation).

FSB has established that Kanterakis' third cause of action fails to state a claim against it. The third cause of action alleges that defendant "Roseland Lend, improperly acting through false authority given thereto by the other defendants, has been collecting, or attempting to collect, rents from the commercial tenants on the Properties." However, the FSB mortgage was satisfied on 2007 and on May 13, 2010 Rosedale acquired the mortgage from Green Point Mortgage Funding Inc. ("GMF"), a defendant which has since been dismissed from the action. Plaintiff does not allege that FSB was affiliated with either GMF or Rosedale.

Kanterakis' fourth cause of action seeks a judicial declaration declaring that the alleged forged Power of Attorney, the Deed transferring title of the Property and each and every subsequent conveyance which resulted therefrom are null and void ab initio. However, plaintiff's fourth cause of action cannot be maintained against the moving defendant as FSB assigned all of its interests, rights and title to the Property to Kanterakis via the satisfaction of mortgage dated July 6, 2007. FSB is no longer the holder of the Mortgage. FSB relinquished all of their interest in the Mortgage and the Property prior to the commencement of the action.

Conclusion


FSB's motion for summary judgment pursuant to CPLR §3212(b) for an Order dismissing seconded amended complaint against FSB is granted.

Dated: August 1 , 2013

___________________________

Bernice D. Siegal, J.S.C.