Insurance - Title Insurance - Duty of Insured to Cooperate - Action by Insurer to Quiet Title

Solomon & Siris, P.C., Garden City (Bill Tsevis of counsel), for Old Republic National Title Insurance Company, sued herein as Old Republic National Title Insurance Company Minnesota, doing business as Old Republic Title Insurance Company, and another, defendants.

H. Fitzmore Harris, P.C., Bronx (Fitzmore Harris of counsel), for plaintiffs.

Rosenberg & Steinmetz P.C., Valley Stream (Rachelle Rosenberg of counsel), for EMG Brooklyn LLC and another, defendants/third-party plaintiffs.

Having heard oral argument on April 15, 2025, via Microsoft Teams, and due deliberation having been had thereon, the within motions are determined as follows.

Where title insurance is issued to a property purchaser but it turns out that there was a forged deed in the chain of title, may the property purchaser refuse to cooperate with the title insurer's attempt to quiet title on the property purchaser's behalf in litigation asserting adverse possession and equitable estoppel? May the property purchaser refuse to execute an affidavit of merit in support of a motion for a default judgment in such a quiet title action? May the property purchaser justify such a refusal on the grounds that signing the affidavit places it in a position of participating in misrepresentation and an intrinsic fraud upon the court and that the theories underlying the litigation, adverse possession and equitable estoppel, lack merit?

The motion by the title insurance company herein implicates an issue concerning the extent to which a property purchaser placed in the position encountered by plaintiffs may maintain its qualms about litigation commenced on its behalf by a title insurance company.

Before the court are two motions. Defendant Old Republic National Title Insurance Company, sued here as "Old Republic National Title Insurance Company Minnesota d/b/a Old Republic Title Insurance Company" and "Old Republic National Title Insurance Company Florida d/b/a Old Republic Title Insurance Company"^[FN1] (all referred to herein as Old Republic) [*2]moves in motion sequence No. 13 for the following relief:{**87 Misc 3d at 670}

• Pursuant to CPLR 3212, granting summary judgment in Old Republic's favor and against plaintiffs, and dismissing plaintiffs' verified complaint against it in its entirety.

• Pursuant to CPLR 3212 or 3215, granting a default judgment or summary judgment in favor of Old Republic and against plaintiffs on Old Republic's counterclaim in its amended answer dated October 10, 2024, and declaring that its title insurance policy issued to plaintiff 350 Oakford Street Inc. and all obligations thereunder are terminated due to lack of cooperation.

• Such other and further relief as the court deems just, proper, and equitable. (See NY St Cts Elec Filing [NYSCEF] Doc No. 315.)

Plaintiffs 350 Oakford Street Inc. and Morais Dicks cross-move in motion sequence No. 14 for the following relief:

• Pursuant to CPLR 3012 (b), dismissing Old Republic's counterclaim^[FN2] for failure to serve Old Republic's amended answer containing counterclaim on plaintiffs.

• Pursuant to CPLR 3012 (d), compelling Old Republic to accept service of plaintiffs' answer/reply to Old Republic's counterclaim, and directing a time for plaintiffs to answer Old Republic's counterclaim.

• Pursuant to CPLR 2004, 2005, and 3012 (c), extending plaintiffs' time to answer Old Republic's counterclaim nunc pro tunc.

• Pursuant to CPLR 3025 (c), directing that the complaint and all pleadings, papers, and proceedings in this action be amended.

• Such further and other relief as the court finds just and proper. (See NYSCEF Doc No. 401.){**87 Misc 3d at 671}

The within action has a long history, as evidenced by the fact that the documents uploaded to NYSCEF now number 460. Its genesis lies in several deeds involving the property located at 209 Brooklyn Avenue, Brooklyn (Kings County), New York (the property).

Marie Carmen Cherubin died in 1995. In her will, Ms. Cherubin bequeathed the property to her sister, Mary Frances Weeks. Ms. Weeks prepared a will dated June 26, 1995, bequeathing the property to Crescentia Matty also known as Mayers, Ms. Weeks's grandniece. A deed from the Estate of Marie Carmen Cherubin to Mary Weeks was dated September 27, 1995, and recorded on December 4, 1995.

Mary Frances Weeks died in November 2000. Letters testamentary were never granted to Rupert Fontanelle, Ms. Weeks's nephew, who filed a petition for same. Ms. Weeks's June 26, 1995 will was not probated. On November 23, 2013, Ms. Mayers filed a petition for letters of administration.

The next deed for the property (after the 1995 one to Ms. Weeks) was dated October 26, 2018, and recorded on November 26, 2018; it reflected a transfer from Ms. Weeks to 209 Brooklyn Avenue Development Corp. No consideration was paid. Clearly, Ms. Weeks's signature was forged since she died in 2000.

209 Brooklyn Avenue Development Corp. deeded the property to EMG Brooklyn LLC (a defendant herein); it was dated February 28, 2019, and recorded on March 7, 2019; the reported consideration was $600,000. Eliezer Gibbur (also a defendant herein) was a principal of purchaser EMG Brooklyn LLC.

The next deed was dated April 11, 2019, and recorded on April 16, 2019, and the consideration was $850,000; this deed, signed by Mr. Gibbur, transferred the property from EMG Brooklyn LLC to 350 Oakford Street Inc. (a plaintiff herein). The principal of 350 Oakford Street Inc. is Morais Dicks (the other plaintiff herein). A $1,150,000.00 mortgage was taken out by 350 Oakford Street Inc. to cover renovation costs.

Adar Land & Tree Abstract Inc. (another defendant herein) recorded both the 209 Brooklyn Avenue Development Corp.-to-EMG Brooklyn LLC deed and the EMG Brooklyn LLC-to-350 Oakford Street Inc. deed. Adar Land & Tree Abstract Inc. acted as an agent for Old Republic National Title Insurance Company (a defendant herein sued as "Old Republic National Title Insurance {**87 Misc 3d at 672}Company Minnesota d/b/a Old Republic Title Insurance Company" and "Old Republic National Title Insurance Company Florida d/b/a Old Republic Title Insurance Company," and referred to as Old Republic), in issuing a title insurance policy (policy) to the purchaser 350 Oakford Street Inc.

By letters dated March 4, 2021, and April 22, 2021, 350 Oakford Street Inc. tendered a claim to Old Republic under the policy, asserting that it acquired "defective title" because the grantor in an earlier deed in the chain of title to the property predeceased and could not have signed the deed, i.e., Mary Weeks. Plaintiffs also asserted that 350 Oakford Street Inc. had a contract to resell the property, and that the contract was cancelled by the buyer because of 350 Oakford Street Inc.'s inability to convey good and marketable title.

On June 7, 2021, plaintiffs filed this lawsuit asserting causes of action against Old Republic sounding in breach of contract, breach of the covenant of good faith and fair dealing, [*4]negligence, and gross negligence. Causes of action were also asserted against the other defendants but they are not germane to the within motion and cross-motion.

In an attempt to cure the defect in title, Old Republic retained the law firm of Butler, Fitzgerald, Fiveson & McCarthy, P.C. (Butler Fitzgerald) to commence an action on behalf of 350 Oakford Street Inc. to quiet title to the property. On December 9, 2021, on behalf of insured plaintiff 350 Oakford Street Inc., Butler Fitzgerald commenced an action in Supreme Court, Kings County, captioned 350 Oakford Street, Inc v Crescentia Mayers a/k/a Crescentia Matty, under index No. 531468/2021, seeking to quiet title. The theory of the lawsuit (quiet title action) was that title should be quieted under the doctrine of adverse possession; also, that Ms. Mayers was equitably estopped from defending any title she had inasmuch as she neither recorded her interest in nor otherwise alerted the public of her interest in the property. The adverse possession cause of action was premised on persons or entities other than Mayers having been in possession actually, exclusively, continuously, and adversely for a period of much more than 10 years. Crescentia Mayers also known as Crescentia Matty, the defendant in the quiet title action, defaulted in answering the complaint. Butler Fitzgerald prepared papers to effectuate a motion for a default judgment. This is when the dispute between Old Republic and plaintiffs truly crystallized.

Butler Fitzgerald needed an affidavit of merit in the quiet title action from plaintiff herein Morais Dicks, as the principal{**87 Misc 3d at 673} of 350 Oakford Street Inc. Mr. Dicks refused to sign the affidavit of merit prepared for him by Butler Fitzgerald. In addition, he unilaterally filed his own affidavit, drafted without Butler Fitzgerald's input, which, Old Republic claims, undermined its efforts to obtain a default judgment to quiet title on behalf of 350 Oakford Street Inc. These actions of plaintiffs Dicks and 350 Oakford Street Inc. form the basis of Old Republic's motion herein and Old Republic's opposition to plaintiffs Dicks and 350 Oakford Street Inc.'s cross-motion.

Central to the instant dispute are provisions in Old Republic's title insurance policy (policy) concerning prosecution of actions and the duty of an insured to cooperate:

"CONDITIONS . . .

"5. DEFENSE AND PROSECUTION OF ACTIONS . . .

"(b) The Company shall have the right, in addition to the options contained in Section 7 of these Conditions, at its own cost, to institute and prosecute any action or proceeding or to do any other act that in its opinion may be necessary or desirable to establish the Title, as insured, or to prevent or reduce loss or damage to the Insured. The Company may take any appropriate action under the terms of this policy, whether or not it shall be liable to the Insured. . . .

"6. DUTY OF INSURED CLAIMANT TO COOPERATE

"(a) In all cases where this policy permits or requires the Company to prosecute or provide for the defense of any action or proceeding and any appeals, the Insured shall secure to the Company the right to so prosecute or provide defense in the action or proceeding, including the right to use, at its option, the name of the Insured for this purpose. Whenever requested by the Company, the Insured, at the Company's expense, shall give the Company all reasonable aid (i) in securing evidence, obtaining witnesses, prosecuting or defending the action or proceeding, or effecting settlement, and (ii) in any other lawful act that in the opinion of the Company may be necessary or desirable to establish the Title or any other matter as insured. If the Company is prejudiced by the failure of the Insured to furnish the required cooperation, the Company's{**87 Misc 3d at 674} obligations to the Insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, with regard to the matter or matters requiring such cooperation." (NYSCEF Doc No. 324 at PDF 4-5.)

The affidavit of merit which Butler Fitzgerald wanted Mr. Dicks to sign on behalf of 350 Oakford Street Inc. reads as follows:

"MORAIS DICKS, being duly sworn, deposes and says:

"1. I am a principal of 350 Oakford Street, Inc. ('Oakford').^[FN3] I am fully familiar with the facts stated herein based upon personal knowledge. I make this affidavit in support of Oakford's motion pursuant to CPLR § 3215 and RPAPL § 1501, granting Oakford a default judgment as against defendant Crescentia Mayers a/k/a Crescentia Matty ('Mayers') declaring that Mayers has no interest in the Premises and that Oakford owns the Premises free and clear of any claim, right, title or interest in the Premises Mayers may have had or may claim to have.

"2. On March 11, 2019, Oakford purchased the real property known as 209 Brooklyn Avenue, Brooklyn, New York, designated on the Kings County Tax Map as Block 1243, Lot 7 ('Premises') from the then record owner EMG Brooklyn, LLC ('EMG'). The deed to Oakford was recorded against the Premises on May 15, 2019. (See, Exhibit H).

"3. Oakford paid $850,000 to purchase the Premises. (See, Exhibit H).

"4. At the time of Oakford's purchase, Oakford had no knowledge of any claim to the Premises by defendant, Crescentia Mayers a/k/a Crescentia Matty ('Mayers').

"5. Oakford had a title search conducted which search did not reveal any claim of Mayers. The record chain of title showed that Mary Weeks ('Weeks'), a prior owner of the Premises sold the Premises to 209 Brooklyn Avenue Development Corp. ('209 Brooklyn') on October 26, 2018. The deed to 209{**87 Misc 3d at 675} Brooklyn was recorded against the Premises on November 26, 2018. (See, Exhibit F). Thereafter, the Premises were transferred by 209 Brooklyn to EMG by deed dated February 28, 2019. The deed to EMG was recorded against the Premises on March 7, 2019. (See, Exhibit G).

"6. Only after the closing did we learn that Mayers filed proceedings in Surrogate's Court alleging that Weeks died in 2000, long before the deed transfer into 209 Brooklyn. Oakford had no knowledge of this at the time it purchased the Premises.

"7. I am advised by counsel that Mayers took no steps to alert the public of her purported interest in the Premises since the passing of Weeks in 2000. I am further advised that Mayers knew as early as December of 2018 that the Premises had been transferred in October 2018 by a person purporting to be Weeks and yet still did not file anything in the public records to alert the public of her alleged interest in the Premises. Certainly, had Mayers recorded any claim against the Premises, Oakford would not have purchased same without that claim being addressed and resolved.

"8. My counsel advises that as a result of Mayers failure to take any steps to assert her interest in the Premises, she is now estopped from asserting any such interest.

"WHEREFORE, Oakford's motion for a default judgment on its first cause of action quieting title as against Mayers should be granted in its entirety together with such other and further relief the Court deems equitable, just and proper.

"350 OAKFORD STREET, INC.

"_________________________

"By: MORAIS DICKS

"Sworn to before me this ____

"Day of February, 2022

"_________________________

"Notary Public" (NYSCEF Doc No. 336 at PDF 23-25).

Plaintiffs have maintained until now and continue to maintain that while they had a duty to cooperate with Old Republic, the affidavit of merit drafted for Mr. Dicks was not a lawful one as it misrepresented the true facts of the quiet title{**87 Misc 3d at 676} action, that plaintiffs were required only to engage in lawful acts in support of the quiet title action, and that Dicks did not intend to be a part of the furtherance of any fraud, forgery, and just plain dishonesty. Plaintiffs have argued that since there was a forged deed in the chain of title (the Weeks-to-209 Brooklyn Avenue Development Corp. deed), title simply could not legitimately repose in 350 Oakford Street Inc.

Following what Old Republic contends was noncooperation, Old Republic and Butler [*6]Fitzgerald advised plaintiffs that the insured did not have the right to direct the defense under the title policy, and that there was neither anything false about the affidavit in the quiet title action provided for Mr. Dicks's signature nor in the moving papers therein. Through Butler Fitzgerald and by itself, Old Republic attempted to procure plaintiffs' cooperation via various communications, including emails, amongst which were those dated November 4, 2021; November 16, 2021; November 30, 2021; December 1, 2021; December 2, 2021; February 18, 2022; March 1, 2022; March 15, 2022; March 17, 2022; March 18, 2022; March 21, 2022; April 26, 2022; June 6, 2022; June 15, 2022; December 1, 2022; and May 10, 2023. Plaintiffs were reminded that the failure to cooperate could lead to termination of Old Republic's obligations to the insured.

Despite diligent efforts made by Butler Fitzgerald, Morais Dicks refused to sign the affidavit of merit drafted for him so that a motion for a default judgment against Crescentia Mayers also known as Crescentia Matty could be presented to the court, and hopefully a default judgment obtained. Plaintiffs' position is underscored by their counsel's comments of March 18, 2022, appearing on a copy of the drafted affidavit:

"COMMENTS:

"This affidavit misrepresents the true facts of the case. First of all, it omits the fact that everyone knows that the deed dated October 26, 2018 was a forged deed and as such, the deed through which EMG obtained title was and still is worthless and it was void ab initio. Moreover, you need to include the fact that all parties are aware of the forgery. For leaving that important aspect out is misrepresentation and you are asking my client to participate in an intrinsic fraud before the court.

"Secondly, your papers ignore the fact that Oakford has been making monthly mortgage payments, has{**87 Misc 3d at 677} a second mortgage which it took out against the premises for $164,000.00, as well as the thousands of dollars Oakford has spent in order to renovate the premises to the point it could be placed on the market, and currently has a mortgage balance of approximately $1,250,000.

"Third, any affidavit which you intend my client to execute must include facts of the action which was brought by Oakford against Old Republic and others. Index no. 513612/2021.

"My client has advised me that he does not intent to be a part of the furtherance of any fraud, forgery, and just plain dishonesty.

"Thus, if you expect my client to execute an affidavit, you must include ALL the facts of the case and not actively conceal any facts of the case because it is dishonest and unethical. Please make the necessary corrections and re-transmit the affidavit for us to review." (NYSCEF Doc No. 336 at PDF 41.)

On August 9, 2023, Mr. Dicks (by his counsel herein) filed the affidavit (on NYSCEF) [*7]which Old Republic has characterized as sabotaging the quiet title action; the affidavit was notarized by plaintiffs' counsel herein. This affidavit in the quiet title action asserted that the action was bogus, the property was worthless, 350 Oakford Street Inc. acquired no interest in the property, 350 Oakford Street Inc. lacked standing to commence the quiet title action, and even if 350 Oakford Street Inc. acquired title through a default judgment, this would be worthless due to the forged Mary Weeks deed.

As a result, Old Republic argues that its motion for summary judgment dismissing the complaint should be granted—that plaintiffs refused to cooperate in the prosecution of the quiet title action, thereby warranting termination of Old Republic's obligations under the policy.

Plaintiffs maintain that they did nothing wrong, that Mr. Dicks did not refuse to cooperate in prosecuting the quiet title action, that Old Republic should have paid plaintiffs' claim, that Old Republic breached the implied covenant of good faith and fair dealing, that the quiet title action could not succeed since 350 Oakford Street Inc. did not occupy the premises for at least 10 years under the adverse possession doctrine, that Old Republic's summary judgment motion is premature in the absence of discovery, and that the quiet title action is moot since surviving legatees of Mary Weeks's estate deeded the{**87 Misc 3d at 678} property on February 4, 2022, to American Regional Real Estate Partners, LLC. Hence, Old Republic's motion for summary judgment should be denied, claim plaintiffs.

The quiet title action lies dormant. It is still listed as active in a court system database but the one-year deadline for proceeding to obtain a default judgment has long passed.

Plaintiffs herein interposed a cross-motion dealing with procedural issues, discussed earlier (see supra at 670) and further discussed below (see infra at 687).

Plaintiffs' cause of action for breach of contract is premised on Old Republic's refusal to pay the claim made under the policy. Old Republic argues, however, that before it considered the claim it was entitled to commence the quiet title action to validate title in 350 Oakford Street Inc. The record evidence submitted by the parties confirms that there are no material issues of fact which would impair this court's ability to determine plaintiffs' causes of action and Old Republic's counterclaim through the summary judgment process. The evidence is documentary in nature. The communications between the parties took place in correspondence, the dates of which were enumerated above. The bona fides of the documentary evidence are not an issue. The evidence is not sparse. Rather it overwhelmingly proves beyond doubt that Old Republic attempted to gain the cooperation of 350 Oakford Street Inc., acting through its principal Morais Dicks, and the response—which included the submission of the August 9, 2023 affidavit in the quiet title action—was willful and avowed obstruction which constituted not only a failure to cooperate but an active effort to undermine and sabotage efforts to rectify the situation.

A policy of title insurance is a contract by which the title insurer agrees to indemnify its [*8]insured for loss occasioned by a defect in title (see L. Smirlock Realty Corp. v Title Guar. Co., 52 NY2d 179, 187-188 [1981]). A title insurer's obligation to indemnify is defined by the policy itself (see Darbonne v Goldberger, 31 AD3d 693 [2d Dept 2006]; Citibank v Chicago Tit. Ins. Co., 214 AD2d 212 [1st Dept 1995]). Therefore, Old Republic had a right (but not a duty) to attempt to obtain a judicial determination that valid title was ensconced in 350 Oakford Street Inc. This was per the aforecited paragraph 5 of the policy's conditions.{**87 Misc 3d at 679}

Concomitantly, per paragraph 6 of the conditions portion of the policy, 350 Oakford Street Inc. was charged with the duty to cooperate in Old Republic's efforts to prosecute the quiet title action by performing any lawful act that, in the opinion of Old Republic, might be necessary or desirable to ensconce title in 350 Oakford Street Inc.

The failure of an insured to cooperate will relieve an insurer of its obligation to pay (see Lentini Bros. Moving & Stor. Co. v New York Prop. Ins. Underwriting Assn., 53 NY2d 835 [1981]; Rajchandra Corp. v Title Guar. Co., 163 AD2d 765 [3d Dept 1990]). "In the case of every contract there is an implied undertaking on the part of each party that he [or she] will not intentionally and purposely do anything to prevent the other party from carrying out the agreement on his [or her] part (Patterson v Meyerhofer, 204 NY 96, 100 [1912])" (Syracuse Orthopedic Specialists, P.C. v Hootnick, 42 AD3d 890, 892 [4th Dept 2007] [internal quotation marks omitted]). Moreover, "it is undisputedly the rule that one who frustrates another's performance cannot hold that party in breach (Long Is. Sav. Bank v Geloda/Briarwood Corp., 190 AD2d 64, 67; Ellenberg Morgan Corp. v Hard Rock Cafe Assocs., 116 AD2d 266, 271; 3A Corbin, Contracts § 767)" (Water St. Dev. Corp. v City of New York, 220 AD2d 289, 290 [1st Dept 1995]).

An insured must cooperate with the insurer in underlying litigation (see Allstate Ins. Co. v United Intl. Ins. Co., 16 AD3d 605 [2d Dept 2005] [failing to appear to testify]; Utica Mut. Ins. Co. v Gruzlewski, 217 AD2d 903 [4th Dept 1995] [refusal to turn over documents and failure to appear at examination before trial or court-ordered pretrial/settlement conferences]; Atlantic Mut. Ins. Co. v Struve, 210 AD2d 112 [1st Dept 1994] [refusal to accept legal representation at insurer's expense and insistence on representing herself]; Employers-Commercial Union Ins. Cos. of Am. v Buonomo, 41 AD2d 285 [4th Dept 1973] [refusal to attend examination before trial and trial]; American Tr. Ins. Co. v Fuentes, 1 Misc 3d 787 [Sup Ct, Kings County 2003] [insured moved to disqualify counsel appointed by insurer]).

To establish that an insured breached its duty to cooperate with a title insurer, an insurer must demonstrate that: (1) it acted diligently in seeking to bring about the insured's cooperation; (2) the efforts it employed were reasonably calculated to obtain the insured's cooperation; and (3) the attitude of the insured, after his cooperation was sought, was one of willful{**87 Misc 3d at 680} and avowed obstruction (see Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 168 [1967]; Coleman v New Amsterdam Cas. Co., 247 NY 271, 276 [1928]; West St. Props., LLC v American States Ins. Co., 150 AD3d 792 [2d Dept 2017]; Emigrant Mtge. Co., Inc. v Washington Tit. Ins. Co., 78 AD3d 1112, 1114 [2d Dept 2010]; Allstate Ins. Co. v United Intl. Ins. Co., 16 AD3d 605 [2d Dept 2005]). This burden of proving the lack of cooperation is a heavy one (see Thrasher v United States Liab. Ins. Co., 19 NY2d at 168).

Here, Old Republic demonstrated the presence of all three necessary criteria, in support of its motion for summary judgment dismissing the complaint and granting its counterclaim cause of action for noncooperation by the insured, 350 Oakford Street Inc. (see MDRN Intelligence Living Wolfhome v Hartford Fin. Servs. Group, Inc., 216 AD3d 409 [1st Dept 2023]; Evans v International Ins. Co., 168 AD2d 374 [1st Dept 1990]; Averbuch v Home Ins. Co., 114 AD2d 827 [2d Dept 1985]). The quantum of documentation of correspondence evidencing repeated efforts to gain Morais Dicks's cooperation and the responses from his counsel reinforcing the refusal to cooperate is overwhelming (see West St. Props., LLC v American States Ins. Co., 150 AD3d 792, 794-795 [2d Dept 2017]). No less than 16 letters and emails sent by Old Republic or Butler Fitzgerald are before this court. Plaintiffs were warned of the consequences.

It bears saying that plaintiffs did not have the right under the policy to assess the likelihood of success of the quiet title action and decide whether to cooperate. Plaintiffs did not have the right under the policy to challenge and argue against the quiet title action and raise its alleged deficiencies. Plaintiffs did not have the right under the policy to determine and argue that the quiet title action was futile and lacked merit.

Plaintiffs lacked the right to argue that 350 Oakford Street Inc. could not possibly have acquired title to the property by adverse possession, in order to justify their failure to cooperate in the quiet title action. It was not for plaintiffs to make such legal determination. Plaintiffs' obligation under the policy was to cooperate with Old Republic in its effort to cure the title defect—not to predetermine that the title defect could not be cured and not to frustrate Old Republic's right to pursue litigation, which in reality is a right to avoid paying a claim if it can do so through a successful lawsuit whose result reposed valid and legal title in the insured property purchaser.

Moreover, there was nothing illegal or unethical about Morais Dicks being asked to sign the affidavit of merit in the{**87 Misc 3d at 681} quiet title action. Nothing was factually false in it. The affidavit disclosed that Mary Weeks had died in 2000, long before the deed transfer to 209 Brooklyn Avenue Development Corp. To the extent that the affidavit provided that Mr. Dicks was advised by his counsel of certain matters, he was merely reciting what his counsel informed him. Mr. Dicks, as a principal of 350 Oakford Street Inc., was bound by the policy to cooperate with Old Republic's litigation tactics; it was not his option to disagree with them. He procured the policy and was bound by its provisions.

Plaintiffs' mantra throughout the life of this litigation has been that a forged deed in the chain of title was fatal to any effort to obtain valid title—even by invoking the doctrine of adverse possession. "Co-operation does not mean that the assured is to combine with the insurer to present a sham defense" (Coleman v New Amsterdam Cas. Co., 247 NY at 276). However, Old Republic's counsel in the quiet title action advanced an arguably valid position that through tacking on others' periods of possession, a viable claim of adverse possession could be made (see Brand v Prince, 35 NY2d 634 [1974]). There was the other claim also—that Crescentia Mayers was collaterally estopped from asserting a claim to title.

In fact, attempting to take title through the doctrine of adverse possession where there is a forged deed in the chain of title is not such a novel undertaking. The concept was discussed at length in Montague v Yezol, Inc. (83 Misc 3d 424 [Sup Ct, Bronx County 2024]). Without delving too much into that court's analysis, it is noted that the decision took cognizance of Goff v Shultis (26 NY2d 240 [1970]), ascribing to it the proposition that a party may claim adverse possession founded upon a written instrument even if the written instrument does not show a good title. The following in the Montague v Yezol, Inc. decision conveys at least that the Butler Fitzgerald-commenced quiet title action had plausibly colorable merit:

"Furthermore, a fraudulent deed can still support the necessary color of title to establish an adverse possession claim. (See Ammirati v Van Wicklen, 16 Misc 3d 952, 959 [Sup Ct, Nassau County 2007]; Criswell v Noble, 61 Misc 483, 486 [Sup Ct, Niagara County 1908]; Evans v Lux, 121 Misc 466, 473 [Sup Ct, Wayne County 1923]; see also Beaver v Taylor, 68 US 637, 638-639 [1863] [void deed taken{**87 Misc 3d at 682} in good faith is sufficient color of title for adverse possession]; see generally Ziegler v Serrano.)

"Moreover, plaintiffs' argument is contrary to the plain reading and purpose of the adverse possession statute. (Ziegler v Serrano.) The purpose of the doctrine of adverse possession is the settlement and repose of titles. (Joseph v Whitcombe, 279 AD2d 122 [1st Dept 2001].) The very essence of adverse possession is the acquisition of title to property that, but for the adverse possession, is legally owned by another. The necessary effect, by barring the real owner's right to recover his property, is, of course, to extinguish his title and make absolute the wrongful possessor's. (Brand v Prince, 35 NY2d 634 [1974].) To conclude that a forged deed prevents an award of title by adverse possession would defeat the very purpose of this historical legal principle and is contrary to law." (Montague v Yezol, Inc., 83 Misc 3d at 442-443.)

The Montague v Yezol, Inc. court acknowledged that oft-cited Faison v Lewis (25 NY3d 220 [2015]) holds that a forged deed cannot convey title, but observed that title can be acquired by adverse possession, even with tacking. Westlaw does not indicate any other decisions citing to Montague v Yezol, Inc. but it is not for this court to determine whether said decision accurately conveys the law or not. This court merely concludes that Old Republic did not urge upon 350 Oakford Street Inc. a frivolous claim in the quiet title action.

Further, even if plaintiff Morais Dicks was willing to sign an affidavit, but one different in content from that prepared by Butler Fitzgerald for his signature, this position was inconsistent with the policy's provisions which imbued Old Republic with the right to secure evidence. The attorneys selected by Old Republic possessed the contractual right to control the litigation under the insured's name, a right neither reserved to the insured nor its private attorney (see Atlantic Mut. Ins. Co. v Struve, 210 AD2d at 114 ["Given the clear language of the policy . . . the insured . . . cannot dictate the choice of counsel to . . . her liability insurer"]).

If it turned out that the affidavit of merit was insufficient to obtain a default judgment in the quiet title action, and if title could not be established in the insured, either by adverse possession or otherwise, then 350 Oakford Street Inc. would have{**87 Misc 3d at 683} had its remedies under the [*11]policy, i.e., a right to indemnification through financial compensation. Simply put, Old Republic had a right to engage in litigation as either a precursor or an alternative to accepting plaintiffs' claim for payment.

Not only did Mr. Dicks not cooperate with Old Republic's attempt to salvage title for 350 Oakford Street Inc. when he refused to sign the affidavit of merit for the default judgment motion in the quiet title action, he intentionally and willfully sabotaged the litigation through his filing of an affidavit explicitly undermining his assigned counsel's theories underpinning the litigation. This is akin to an insured suing its own title insurer without affording the title insurer reasonable time to take remedial measures, which has been held to constitute a breach of the duty to cooperate per the policy (see All State Props., LLC v Old Republic Natl. Tit. Ins. Co., 95 AD3d 1049 [2d Dept 2012]). Dicks's conduct frustrated Old Republic's performance of a right under the title insurance policy (see Water St. Dev. Corp. v City of New York, 220 AD2d 289).

In researching this area of the law, the court came upon American Sur. Co. of N.Y. v Diamond (1 NY2d 594 [1956]). At first blush this decision might support plaintiffs' position herein but after concluding reading it, the court feels otherwise. The case involved a motor vehicle accident where a mother drove her son's car with his permission. Her son was the named insured. Her husband (the named insured's father) was a passenger and was killed in an accident. The insurer insisted that the son sign a third-party complaint against his mother in the underlying action of the mother, who sued her son in the capacity of being an executor of her husband's estate, for wrongful death. The son's refusal to sign the third-party complaint against his mother was held by the Court of Appeals not to constitute lack of cooperation. The son claimed that the policy required the insurer to defend his mother and, therefore, one insured should not be required to sue another insured. The insurer, however, not only continued to insist that the pleading be signed and sworn to but declined to explain its reasons for such insistence. The Court concluded that the son had not engaged in lack of cooperation. He was not required to cooperate in presenting a sham defense or executing instruments he believed to be erroneous, said the Court.

Whereas in American Sur. Co. of N.Y. v Diamond, the insurer declined to explain its reasons for insisting that the son sign{**87 Misc 3d at 684} the third-party complaint, here Old Republic provided ample explanation why Morais Dicks was asked to sign the affidavit of merit. It was explained that an attempt was being made to obtain title through the doctrines of adverse possession and equitable estoppel. Old Republic was much more persistent in reaching out to plaintiffs than the insurer evidently was in American Sur. Co. of N.Y. v Diamond.

The Court in American Sur. Co. of N.Y. v Diamond did recognize that the attitude of the insured must be one of willful and avowed obstruction, but concluded that the insurer did not meet its burden on that requirement. In the situation at hand, plaintiffs did display willful and avowed obstruction.

Most significantly, in American Sur. Co. of N.Y. v Diamond, the relevant policy clause required the insured to cooperate "in the conduct of suits." There was no suggestion in the [*12]policy that the conduct of cross-suits against anyone was within contemplation of the cooperation clause. "[T]his is the first recorded instance of a contention by an insurer that co-operation 'in the conduct of suits' contemplates the bringing of cross suits in the name of the insured" (id. at 600). The Court also wrote:

"Still another ground is available for holding that the 'suits' in the conduct of which the policy required David Diamond to co-operate were suits against him, not suits brought by him. Most of the States in which this same policy form is universal do not permit (as New York does) the filing of cross complaints against persons liable over to the original defendant (see Journal of American Judicature Soc., Aug., 1954, p. 57; Clark on Code Pleading [2d ed.], p. 408; Twelfth Annual Report of N. Y. Judicial Council, 1946, p. 230). This fact alone would make it unlikely that 'suits' include cross suits." (Id. at 600-601.)

"The purpose of the co-operation clause is to constrain the assured to co-operate in good faith with the insurance company in the defense of claims" (id. at 598-599 [emphasis omitted]). Clearly, the particular wording of the policy at issue in American Sur. Co. of N.Y. v Diamond formed the basis for the Court's determination. The instant case, however, presents a differently worded policy condition, which explicitly mandated aid in prosecuting an action, not just in defending one. References to prosecuting an action are set forth in both the defense and{**87 Misc 3d at 685} prosecution of actions section and in the duty of insured claimant to cooperate one.^[FN4]

American Sur. Co. of N.Y. v Diamond involved a refusal to verify a cross-claim in an action emanating from a motor vehicle accident where the insured was a defendant whereas, in the present matter, Morais Dicks's refusal was to sign an affidavit of merit in a primary action to quiet title in real property.

The majority opinion in American Sur. Co. of N.Y. v Diamond, written by Judge Desmond, carried the support of four Court of Appeals judges. In a separate opinion of Judge Froessel, which was supported by three judges, he included, the view was that the named insured could be required to verify a third-party complaint against the vehicle driver (his mother); it was encompassed within the policy's "the conduct of suits." The insurer was "entitled to whatever defenses, counterclaims or claims over the insurance policy" (id. at 602). This supports the position of Old Republic.

Apparently, the insurer declared a forfeiture of the policy for noncooperation pretty quickly. Judge Froessel noted, "[N]o prejudice to the insurer was occasioned, for, in fact, the original negligence action was already subject to the delay of a crowded calendar, and was not [*13]likely to reach the trial stage for a considerable period after issue was joined" (id. at 603). On the other hand, Old Republic was up against the one-year deadline for making its default judgment motion against Crescentia Mayers, and Morais Dicks's delays did prejudice Old Republic.

The holding in American Sur. Co. of N.Y. v Diamond, therefore, does not control the outcome of the within motion by Old Republic.

Under the foregoing circumstances, plaintiffs lack a valid cause of action for breach of contract against Old Republic. The court holds that where title insurance is issued to a property purchaser but it turns out that there was a forged deed in the chain of title, the property purchaser may not refuse to cooperate with the title insurer's attempt to quiet title on the property{**87 Misc 3d at 686} purchaser's behalf in litigation asserting adverse possession and equitable estoppel as long as the factual assertions are truthful, as was the situation in the case at bar. Likewise, the property purchaser may not refuse to execute an affidavit of merit in support of a motion for a default judgment in such a quiet title action where a plausible colorable claim is being asserted on its behalf, as there was here. In such a situation, the property purchaser may not justify such a refusal on the grounds that signing the affidavit places it in a position of participating in misrepresentation and an intrinsic fraud upon the court and that the theories underlying the litigation, adverse possession and equitable estoppel, lack merit.

The court also finds that plaintiffs' cause of action alleging breach of the implied covenant of good faith and fair dealing has no basis. Not only is this cause of action duplicative of the breach of contract one (see New York Univ. v Continental Ins. Co., 87 NY2d 308 [1995]; Refreshment Mgt. Servs., Corp. v Complete Off. Supply Warehouse Corp., 89 AD3d 913 [2d Dept 2011]), but the court repeats that Old Republic was entitled to pursue a quiet title action in an attempt to lodge title in 350 Oakford Street Inc. Old Republic acted in good faith and dealt with plaintiffs fairly.

Plaintiffs lack causes of action for negligence and gross negligence. A contract for a title search is distinct from the contract of insurance, i.e., the policy (see Citibank v Chicago Tit. Ins. Co., 214 AD2d 212 [1st Dept 1995]). An insurer who issues a title insurance policy cannot be held liable for negligence in searching title (see id.; Trenton Potteries Co. v Title Guar. & Trust Co., 176 NY 65, 75 [1903]; Frydman v Fidelity Natl. Tit. Ins. Co., 68 AD3d 622 [1st Dept 2009]; Maggio v Abstract Tit. & Mtge. Corp., 277 App Div 940 [4th Dept 1950]). In fact, the title search is for the benefit of the title insurer, not the insured; the insured's remedies lie in the policy's provisions (see Citibank v Chicago Tit. Ins. Co., 214 AD2d 212).

This court rejects plaintiffs' argument that this action is premature due to the need for discovery. The documentary evidence clearly establishes that plaintiffs refused to cooperate with Old Republic in its justifiable attempt to quiet title on behalf of 350 Oakford Street Inc.

That legatees of Mary Weeks have issued a deed to another entity does not moot anything. At the time the quiet title action was commenced, this deed had not yet been issued. Old Republic was entitled, according to the policy, to attempt to remedy 350 Oakford Street [*14]Inc.'s infirmity in title.{**87 Misc 3d at 687}

Pursuant to this court's September 23, 2024 order, Old Republic served an amended answer on plaintiffs and other NYSCEF-registered parties via e-filing on NYSCEF on October 2, 2024. This amended answer included a counterclaim against plaintiffs, alleging "Plaintiffs' unreasonable and unjustifiable failure and refusal to cooperate in the prosecution of the Quiet Title Action" (NYSCEF Doc No. 348 ¶ 150) and that Old Republic's "obligations to 350 Oakford [Street Inc.] under the Policy are terminated" (id. ¶ 154).

Plaintiffs contend that their counsel had to be served with the amended answer at his office—that service via e-filing on NYSCEF did not constitute valid and effectual service. Although plaintiffs' answer/reply to the counterclaim was late—it was e-filed on NYSCEF on November 4, 2024, and rejected by Old Republic—plaintiffs argue that the answer/reply should be deemed timely filed nunc pro tunc. Further relief is also requested.

Plaintiffs' argument that Old Republic's amended answer was not served when it was e-filed on NYSCEF is frivolous (see CPLR 2111; Uniform Rules for Trial Cts [22 NYCRR] §§ 202.5-b [f] [2] [ii]; 202.5-bb [c] [1]; Ruisech v Structure Tone Inc., 42 NY3d 1061 [2024]). To the extent that plaintiffs' answer/reply to Old Republic's counterclaim contained in the amended answer was late, this is excused; the answer/reply is deemed timely filed nunc pro tunc (see CPLR 3012 [d]). Plaintiffs' counsel dealt with a heavy workload, the verified complaint sufficed for "meritorious defense," and the delay was brief (see MMG Design, Inc. v Melnick, 35 AD3d 823 [2d Dept 2006]; Matter of Ajamian, 225 AD2d 992 [3d Dept 1996]; J.P.R. Cafeteria, Inc. v Kingsborough Community Coll. of City Univ. of N.Y., 16 Misc 3d 1127[A], 2007 NY Slip Op 51589[U], *6 [Sup Ct, Kings County 2007]). Old Republic's objection to the acceptance of plaintiffs' late answer/reply is overridden.

Plaintiffs' other procedural arguments set forth in their cross-motion are otherwise rejected. This includes that branch of plaintiffs' cross-motion seeking time to answer Old Republic's counterclaim; it was already answered (see NYSCEF Doc No. 349 at PDF 5-7).

It is hereby ordered as follows:

(1) That branch of the motion by defendant Old Republic National Title Insurance Company, sued here as "Old Republic {**87 Misc 3d at 688}National Title Insurance Company Minnesota d/b/a Old Republic Title Insurance Company" and "Old Republic National Title Insurance Company Florida d/b/a Old Republic Title Insurance Company," seeking summary judgment in its favor and against plaintiffs 350 Oakford Street Inc. and Morais Dicks, and seeking to dismiss plaintiffs' verified complaint as against them, is granted.

(2) (a) Summary judgment is awarded to Old Republic National Title Insurance [*15]Company, sued here as "Old Republic National Title Insurance Company Minnesota d/b/a Old Republic Title Insurance Company" and "Old Republic National Title Insurance Company Florida d/b/a Old Republic Title Insurance Company," against 350 Oakford Street Inc. and Morais Dicks;

(b) the verified complaint of 350 Oakford Street Inc. and Morais Dicks is dismissed in its entirety as against Old Republic National Title Insurance Company, sued here as "Old Republic National Title Insurance Company Minnesota d/b/a Old Republic Title Insurance Company" and "Old Republic National Title Insurance Company Florida d/b/a Old Republic Title Insurance Company"; and

(c) the Clerk shall enter judgment accordingly.

(3) That branch of the motion by defendant Old Republic National Title Insurance Company, sued here as "Old Republic National Title Insurance Company Minnesota d/b/a Old Republic Title Insurance Company" and "Old Republic National Title Insurance Company Florida d/b/a Old Republic Title Insurance Company," seeking a default judgment or summary judgment in its favor and against plaintiffs 350 Oakford Street Inc. and Morais Dicks on the said defendant's counterclaim in said defendant's amended answer dated October 10, 2024, and declaring that said defendant's title insurance policy issued to plaintiff 350 Oakford Street Inc. and all obligations thereunder are terminated, is granted to the extent indicated below.

(4) (a) Summary judgment is awarded to Old Republic National Title Insurance Company, sued here as "Old Republic National Title Insurance Company Minnesota d/b/a Old Republic Title Insurance Company" and "Old Republic National Title Insurance Company Florida d/b/a Old Republic Title Insurance Company," against 350 Oakford Street Inc. and Morais Dicks on the counterclaim of Old Republic National Title Insurance Company, sued here as "Old Republic National Title Insurance Company Minnesota d/b/a Old Republic Title Insurance Company" and "Old Republic National Title Insurance Company{**87 Misc 3d at 689} Florida d/b/a Old Republic Title Insurance Company," interposed in said defendant's amended answer;

(b) it is declared that title insurance policy number XX-XXXXXXXX, title number FTA1585, effective April 11, 2019, issued by Old Republic National Title Insurance Company, sued here as "Old Republic National Title Insurance Company Minnesota d/b/a Old Republic Title Insurance Company" and "Old Republic National Title Insurance Company Florida d/b/a Old Republic Title Insurance Company," to 350 Oakford Street Inc., and all obligations thereunder, are be and the same terminated; and

(c) the Clerk shall enter judgment accordingly.

(5) The cross-motion by plaintiffs 350 Oakford Street Inc. and Morais Dicks is granted to the extent that their answer/reply to the amended answer containing counterclaim of defendant Old Republic National Title Insurance Company, sued here as "Old Republic National Title Insurance Company Minnesota d/b/a Old Republic Title Insurance [*16]Company" and "Old Republic National Title Insurance Company Florida d/b/a Old Republic Title Insurance Company," is deemed timely filed and served nunc pro tunc, the lateness in filing and serving said answer/reply is excused, and the objection to acceptance of plaintiffs' late answer/reply by defendant Old Republic National Title Insurance Company, sued here as "Old Republic National Title Insurance Company Minnesota d/b/a Old Republic Title Insurance Company" and "Old Republic National Title Insurance Company Florida d/b/a Old Republic Title Insurance Company," is overridden, and said cross-motion is otherwise denied.