The following e-filed papers read herein: NYSCEF Doc Nos.

MS 1 5-13, 16-30

Defendant's motion to dismiss the instant action is decided as follows:

This action arises out of defendants' alleged failure to properly perform title and recording services for three mortgage loans totaling approximately $2.8 million that plaintiff extended to non-party borrower Moshe Rudich ("Rudich") between 2017 and 2018. Plaintiff claims defendants failed to record mortgage documents as promised, misrepresented that recordings had been completed, and concealed their failures while enabling third-party lenders to gain priority liens. Plaintiff initially commenced suit in Westchester County Supreme Court under Index No. 50302/2021 (the "Westchester Action"). However, the action in question was dismissed under CPLR § 3215 (c) after laying dormant for more than one year. Plaintiff thereafter instituted the instant action, which echoes the claims asserted in the Westchester [*2]County iteration of this proceeding, in Kings County pursuant to CPLR § 205 (a).

Defendants move to dismiss the instant action in its entirety under CPLR §§ 3211 (a) (1), (a) (7), and (a) (8), arguing that said action constitutes an improper refiling of the previously dismissed case coupled with impermissible forum shopping. Defendants contend that plaintiff's claims related to two of the three loans at issue herein, namely, the so-called Mercer and Camp Louemma loans, are moot or resolved, relying upon a New Jersey court order and plaintiff's correspondence. On the merits, defendants argue that plaintiff fails to state any viable claim, as they never received instructions, payment, or authorization from plaintiff, had no contractual or fiduciary relationship with plaintiff, and made no representations directly to plaintiff. Defendants also seek dismissal of Riverside Abstract LLC, a New Jersey Limited Liability Company ("Riverside NJ"), for lack of personal jurisdiction and request sanctions under 22 NYCRR § 130-1.1.

In opposition, plaintiff contends that the action is timely under CPLR § 205 (a) since the prior dismissal was procedural and without prejudice. Likewise, plaintiff contends that venue in Kings County is permissible. Plaintiff argues that defendants undertook to record documents for the three loans, accepted fees, and falsely represented that the documents had been properly recorded. Plaintiff asserts that the subject allegations support claims for breach of contract, fraud, negligent misrepresentation, promissory estoppel and related causes of action. Plaintiff disputes that any of the loans were repaid or moot and maintains that jurisdiction is proper over both Riverside entities based on their shared operations and conduct related to the New York real estate market.

In reply, defendants reassert that CPLR § 205 (a) should not apply due to plaintiff's prolonged neglect of the Westchester County action and failure to justify the venue change. Defendants further maintain that documentary evidence establishes that the Mercer and Louemma loans have been satisfied or released, vitiating any damages. Defendants reiterate that there is neither privity with, nor misrepresentation or duty owed to, Plaintiff, and that the claims are duplicative, conclusory, or inadequately pleaded under CPLR 3016(b). They again challenge jurisdiction over Riverside NJ and characterize the lawsuit as meritless.

CPLR § 205(a) provides, in pertinent part, as follows:

If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence . . . within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

The statute further requires that, "[w]here a dismissal is one for neglect to prosecute the action . . . the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation."

Here, the Westchester Action was timely commenced on January 9, 2021. The parties entered into a series of stipulations extending defendants' time to answer through May 11, 2022, [*3]but defendants never served an answer. Instead, on January 8, 2024, defendants moved to dismiss under CPLR 3215(c) for plaintiff's failure to seek a default judgment within one year. In its January 7, 2025 Decision and Order, the Westchester County Supreme Court found that defendants had waived their right to seek dismissal under CPLR 3215(c) by appearing and stipulating to extensions, but nonetheless, applied "the plain meaning of CPLR R. 3215(c) and dismiss[ed] the Complaint as abandoned" (see NYSCEF Doc. No. 10).

Critically, the Westchester County Supreme Court did not issue a "final judgment upon the merits," did not dismiss for "failure to obtain personal jurisdiction," and did not enter a "dismissal of the complaint for neglect to prosecute" within the meaning of CPLR 205(a). The order contained no findings of "specific conduct constituting . . . a general pattern of delay" as required for a neglect-to-prosecute dismissal under the statute. Rather, the dismissal was a procedural decision due to plaintiff's inaction under CPLR 3215(c), unrelated to the substantive merits of the claims.

Defendants' arguments that plaintiff abandoned the case or engaged in forum shopping do not defeat CPLR 205(a)'s application. The statute contains no diligence requirement beyond its express exceptions and imposes no restriction on refiling in a different venue. As the Court of Appeals has held, CPLR 205(a) is "remedial" in nature, intended "to ameliorate the potentially harsh effect of the Statute of Limitations in certain cases" and "[i]ts broad and liberal purpose is not to be frittered away by any narrow construction" (George v Mt. Sinai Hosp., 47 NY2d 170, 177 [1979] [citation and internal quotation marks omitted]).

Insofar as the instant action was filed within six months of the Westchester County Action's dismissal, arises from the same transactions, and service was timely effected, it falls squarely within the scope of CPLR 205(a). Accordingly, the instant action is timely and may proceed.

Defendants seek dismissal of all claims asserted against Riverside NJ pursuant to CPLR 3211(a)(8) on account of lack of personal jurisdiction. Under CPLR 302(a)(1), a court may exercise jurisdiction over a non domiciliary only "as to a cause of action arising from" where the defendant "transacts any business within the state or contracts anywhere to supply goods or services in the state."

Plaintiff contends that Riverside NJ "operated interchangeably" with Riverside NY because "invoices from Riverside use both the New York and New Jersey addresses, and do not identify the legal name and the state of the entity whose bank account is provided." The record does not support plaintiff's characterization on this front. A review of NYSCEF Doc. No. 17 establishes that only a single cover letter (page 2) features Riverside's letterhead listing both the New York and New Jersey addresses. The invoices themselves (pages 3—4) set forth solely the New York address, identify the payee simply as "Riverside Abstract," and provide banking information for a "Signature Bank NY" account with a New York address. No invoice, payment instruction, or other transaction related document references Riverside NJ, its New Jersey address, or any New Jersey bank account. Plaintiff offers no explanation - and the Court finds none — as to how the presence of both addresses on a general letterhead, without any indication that Riverside NJ negotiated, contracted, performed, or delivered services in New York, satisfies CPLR 302(a)(1)'s requirement that the defendant "transacts any business within the state" or [*4]"contracts anywhere to supply goods or services in the state."

Plaintiff also relies on the email signature of defendants' in-house counsel, Mr. Aryeh Lazarus, arguing that his email signature identifies him as national counsel and "again provides both addresses." However, the emails in the record establish that while Mr. Lazarus's title is "National Counsel," his signature block lists solely the New Jersey address, not the New York address, indicating that he works out of Riverside's New Jersey office. This fact does not demonstrate that Riverside NJ transacted business with plaintiff in New York or contracted to provide services here.

Although plaintiff alleges that the New York and New Jersey entities "hide behind one another at the dismissal stage to avoid jurisdiction" and operate interchangeably, such conclusory assertions are unsupported by competent evidence. The use of a combined letterhead does not establish that Riverside NJ "purposefully avail[ed] itself of the privilege of conducting activities within" New York, nor that the claims asserted arise from any such purposeful activities (see Williams v Beemiller, Inc., 33 NY3d 523, 528 [2019] [citation omitted]). Plaintiff cites to no legal authority for its conclusive assertion that "the question is not whether Riverside as an enterprise did business in New York . . . but whether the internal distinction between New York Riverside and New Jersey Riverside prevents the Court, at this stage, from having jurisdiction over the New Jersey entity."

Accordingly, the branch of defendants' motion to dismiss the instant action as against Riverside NJ for lack of personal jurisdiction is granted.

The Appellate Division, Second Department has held that "[a] motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim" (Fontanetta v Doe, 73 AD3d 78, 83 [2d Dept 2010] [citation and internal quotation marks omitted]). Such documentary evidence must be "of undisputed authenticity" (id.). Indeed, "[t]o constitute documentary evidence, the evidence must be unambiguous, authentic, and undeniable" (Xu v Van Zwienen, 212 AD3d 872, 874 [2d Dept 2023] [citation and internal quotation marks omitted]).

Here, defendants argue that all claims relating to both the Mercer Loan and the Camp Louemma Loan must be dismissed as moot since there are no longer any damages stemming from such loans. Defendants point to a January 25, 2024 order from the Court of Common Pleas of Mercer County, Pennsylvania (the "Mercer Order"), as well as an estoppel certificate signed by Rudich and various email correspondence as documentary evidence. However, such documentary evidence does not resolve all factual issues as a matter of law or conclusively dispose of plaintiff's claims.

Regarding the Mercer Loan, defendants contend that plaintiff cannot demonstrate damages because the Pennsylvania court has since barred Vulpes Capital from asserting any right or lien adverse to plaintiff's interest, holding in the Mercer Order that "Vulpes Capital LLC is forever barred from asserting any right, lien, title or interest in the land inconsistent with the interest or claim of [plaintiff] Park National Capital Funding LLC" (see NYSCEF Doc No. 12). While the Mercer Order confirms plaintiff's current lien position, it does not resolve whether plaintiff suffered damages due to previously lost priority, delay, or litigation costs. Nor does it conclusively establish that defendants bore no responsibility for the subordination of plaintiff's [*5]lien in the first place, an issue that lies at the heart of plaintiff's claims in this action.

As to the Camp Louemma Loan, defendants posit that the claims are moot since plaintiff purportedly settled with Rudich and rolled the loan into a new, secured position with L&L Capital. In support, defendants rely on a single email from plaintiff's counsel and an estoppel certificate signed by Rudich. The email, dated December 21, 2021, featuring the subject line "Re: Camp Louemma — Dismissal Stips + Substitution Orders," contains only one sentence from plaintiff's counsel: "I'm good, especially once Shani confirms in writing that any excess funds will go to Park National" (NYSCEF Doc. No. 11). However, this vague, informal statement is both conditional and equivocal, explicitly contingent on a written confirmation by "Shani" that is not contained in the record. Moreover, defendants offer no additional correspondence to establish the context of this email or the finality of any alleged settlement, nor do they provide a stipulation of discontinuance, settlement agreement, or court order reflecting that the Camp Louemma claims have been resolved. Additionally, the estoppel certificate signed by Rudich does not establish, as a matter of law, that plaintiff released its claims against defendants or suffered no damages.

Accordingly, the branch of defendants' motion seeking dismissal of all claims relating to the Mercer Loan and Camp Louemma Loan is denied.

It is well established that "[o]n a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (USCHAG Corp. v Flagstar Bank, FSB, 220 AD3d 823, 823-24 [2d Dept 2023] [citation omitted]). "Although a court may consider materials submitted by the defendant in support of its motion, the materials must establish conclusively that the plaintiff has no cause of action" (id.). Moreover, "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Leon v Martinez, 84 NY2d 83, 88 [1994] [citation and internal quotation marks omitted]). "The pleading will be deemed to allege whatever may be implied from its statements by reasonable intendment and the court must give the pleader the benefit of all favorable inferences that may be drawn from the complaint" (Dunn v Gelardi, 59 AD3d 385, 386 [2d Dept 2009] [citation omitted]).

"The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of that contract, and resulting damages" (Blank v Petrosyants, 203 AD3d 685 [2d Dept 2022] [citations and internal quotation marks omitted]). Here, plaintiff alleges that it entered into "a written and/or oral contract" with defendants whereby defendants agreed to provide services relating to the Mercer, Louemma, and State Street loans, including "purchasing title insurance and recording certain documents." Plaintiff further alleges that it satisfied its obligations under the alleged contract by "advancing funds to non-party Rudich or his entities, with which [defendants] had, upon information and belief, a pre-existing relationship or arrangement," and that defendants either drew fees directly from the loan proceeds or were compensated by Rudich. Plaintiff alleges that defendants breached such contract by failing to properly record the relevant mortgages or declarations, or to notify plaintiff of recording failures. Accepting these [*6]allegations as true and according plaintiff the benefit of every possible favorable inference as the Court must, plaintiff sufficiently pleaded all elements of a breach of contract claim and negligent performance thereof.

Defendants affirm that plaintiff "was never a client of Riverside, nor was there any clear, written direction to record," and that "Riverside was never retained by [plaintiff], never issued title insurance for [plaintiff], and never received any written agreements, instructions or fees from [plaintiff] with respect to the three alleged transactions, no invoice was ever issued to [plaintiff], and Riverside never held any funds for them." However, these assertions create factual disputes that are not appropriately resolved on a CPLR 3211(a)(7) motion. While such denials may be relevant at the summary judgment stage, they do not conclusively establish that plaintiff lacks a viable cause of action as a matter of law at this pre-answer, pre-discovery stage.

Accordingly, the branch of defendants' motion seeking to dismiss the first cause of action for breach of contract and careless performance of contract is denied.

"A cause of action alleging breach of fiduciary duty should be dismissed when it is "duplicative of the breach of contract cause of action" as "the claims are based on the same facts and seek identical damages" (Federico v Brancato, 144 AD3d 965, 967 [2d Dept 2016] [citations omitted]). Even if it concerns some of the same conduct, the claim may survive only if "the allegations concern a breach of a duty that is independent of the contract" (Bd. of Managers of Brightwater Towers Condominium v FirstService Residential New York, Inc., 193 AD3d 672 [2d Dept 2021] [citation omitted]).

In the present proceeding, the breach of agent duty to principal claim is predicated on the same factual allegations as the breach of contract claim, namely, defendants' alleged failure to record the mortgages and declarations, misstating recording status and failure to notify plaintiff of material recording issues, among others. Plaintiff seeks the same damages under both causes of action, namely, losses arising from the alleged mishandling of recording duties in connection with the three loans.

Although plaintiff contends that the claim is "pleaded both in the alternative to and concurrently with the claims for breach of contract" and frames the claim as arising from an alleged agency relationship, the duties asserted - to record documents accurately and to notify plaintiff of recording issues — constitute the very same obligations that plaintiff alleges were owed under the contract. Plaintiff does not identify any fiduciary duty that is independent of the contractual relationship alleged in the first cause of action.

Accordingly, the branch of defendants' motion seeking dismissal of the second cause of action for breach of fiduciary duty is granted based on its duplicative nature.

"Where the fraud claim is premised upon an alleged breach of contractual duties and does not concern representations which are collateral or extraneous to the terms of the contract between the parties, a fraud claim does not lie" (Michael Davis Constr., Inc. v 129 Parsonage Lane, LLC, 194 AD3d 805, 807 [2d Dept 2021] [citation omitted]). Additionally, "[w]hen both are alleged, a negligent misrepresentation claim will be found to be duplicative of a breach of contract claim where the pleading fails to allege facts that would give rise to a duty that is independent from the parties' contractual obligations" (id. at 808).

Here, the third cause of action is predicated on the same core allegations underlying the breach of contract claim. The alleged misrepresentations and omissions all concern defendants' performance of the same duties plaintiff claims were owed under the contracts, to wit, to record and protect plaintiff's security interests. Plaintiff does not identify any misrepresentation that was collateral or extraneous to those contractual obligations, nor any independent legal duty arising beyond the contractual relationship.

Accordingly, the branch of defendants' motion seeking dismissal of the third cause of action for fraud, fraudulent concealment and misrepresentation is granted as duplicative of the breach of contract claim.

A promissory estoppel cause of action must be dismissed pursuant to CPLR 3211(a)(7) when it "is impermissibly predicated on allegations that the defendant violated the same promise it made under the oral agreement" (Martin Greenfield Clothiers, Ltd. v Brooks Bros. Group, Inc., 175 AD3d 636, 637-38 [2d Dept 2019] [citations omitted]). "Moreover, to the extent that the plaintiff's promissory estoppel cause of action may have been asserted to circumvent the statute of frauds, the plaintiff [is] required . . . to assert that it suffered unconscionable injury in reliance on the defendant's alleged promise" (id. at 638).

Here, the promissory estoppel claim is based on the same alleged promises underlying the breach of contract cause of action. Plaintiff does not allege any promise that is independent of, or collateral to, the purported contractual obligations, nor does it plead facts showing that it suffered unconscionable injury sufficient to remove the claim from the statute of frauds.

Accordingly, the branch of defendants' motion to dismiss the fourth cause of action for promissory estoppel is granted.

A "simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated" (Dormitory Auth. v Samson Constr. Co., 30 NY3d 704, 705 [2018]. When a "[p]laintiff's negligence allegations in the complaint were merely a restatement, albeit in slightly different language, of the implied contractual obligations asserted in the cause of action for breach of contract," and when "[t]he factual allegations set forth in each cause of action were identical, except that the negligence claim was framed in terms of defendant's failure to comply with professional standards of care," such tort causes of action must be dismissed as duplicative (Dormitory Auth. v Samson Constr. Co., 30 NY3d 704, 705 [2018]; see also, Vermont Mut. Ins. Co. v McCabe & Mack, LLP, 105 AD3d 837, 839 [2d Dept 2013]).

Here, the allegations underlying the fifth, sixth, and seventh causes of action are identical to those buttressing plaintiff's breach of contract claim. The professional malpractice cause of action asserts the same factual contentions set forth in the first cause of action - failures to record, rectify, notify, and accurately state recording status — recalibrated to feature references to "standards of practice" and "licensure." Similarly, the negligent misrepresentation claim is premised on defendants' alleged assurances that the documents would be recorded and that the Louemma Declarations were recorded as of April 2018, and their failure to disclose the TD Bank [*7]loan. These are the same alleged misstatements and omissions that plaintiff claims constituted breaches of contractual and agency duties, and plaintiff identifies no duty to speak independent of the asserted contractual obligations. The negligence claim likewise reiterates the same allegations and seeks the same damages. Although framed in tort terms, these claims do not allege any facts establishing a separate legal duty owed by defendants outside the scope of their purported contractual relationship with plaintiff, nor do they allege distinct damages.

Accordingly, the branch of defendants' motion to dismiss the fifth, sixth, and seventh causes of action for promissory estoppel is granted.

"[T]o recover for aiding and abetting fraud, the plaintiff must plead the existence of an underlying fraud, knowledge of the fraud by the aider and abettor, and substantial assistance by the aider and abettor in the achievement of the fraud" (Weinstein v Levitin, 208 AD3d 531, 532 [2d Dept 2022]). Here, plaintiff alleges that non-party Rudich committed fraud by recording additional debt obligations against collateral connected to the three subject loans, thereby impairing plaintiff's security interests. Plaintiff alleges that defendants had actual knowledge of Rudich's fraudulent conduct and substantially assisted it by intentionally failing to record the mortgages and declarations at issue, by misstating their recording status, and by assisting TD Bank's loan closing without disclosing plaintiff's prior unrecorded lien.

Accepting these allegations as true and according plaintiff the benefit of every possible favorable inference as the Court must, plaintiff sufficiently pleaded all elements of an aiding and abetting fraud claim. The claim is not necessarily duplicative, as it targets defendants' alleged knowing participation and intentional conduct in concert with Rudich's fraud, rather than merely their own failure to perform contractual obligations. Whether plaintiff can ultimately establish actual knowledge and substantial assistance is a factual question not suitable for resolution at this nascent stage of the case.

Accordingly, the branch of defendants' motion seeking to dismiss the eighth cause of action for aiding and abetting fraud is denied.

Based on the foregoing, defendants' motion is granted to the extent that the first and eighth causes of action are dismissed as against Riverside NJ, and the second, third, fourth, fifth, sixth, and seventh causes of action are dismissed in their entirety. The remainder of defendants' motion is denied. Any argument not explicitly addressed herein was considered and deemed to be without merit or unnecessary to address given the court's determination.