

Emigrant Mtge. Co., Inc. v Commonwealth Land Tit. Ins. Co. (2015 NY Slip Op 02684)





Emigrant Mtge. Co., Inc. v Commonwealth Land Tit. Ins. Co.


2015 NY Slip Op 02684


Decided on March 31, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 31, 2015

Tom, J.P., Andrias, Saxe, Manzanet-Daniels, Kapnick, JJ.


153150/12 14646 14645

[*1] Emigrant Mortgage Company, Inc., Plaintiff-Respondent,
vCommonwealth Land Title Insurance Company, Defendant-Appellant, Robert J. Hopp Associates, LLC, et al., Defendants.


Dorf & Nelson LLP, Rye (Jonathan B. Nelson of counsel), for appellant.
Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City (Ronald M. Terenzi of counsel), for respondent.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered March 13, 2014, which denied defendant Commonwealth Land Title Insurance Company's (Commonwealth) motion for summary judgment dismissing the breach of contract claim, and granted plaintiff Emigrant Mortgage Company, Inc.'s (Emigrant) cross motion for summary judgment on the issue of liability on the claim, unanimously affirmed, with costs. Order, same court and Justice, entered August 22, 2014, which, upon reargument, adhered to the March 13, 2014 determination, unanimously dismissed, without costs, as academic.
While the court did not misapprehend Emigrant's cause of action, it should not have granted Emigrant's cross motion for summary judgment on the issue of liability on the ground that Commonwealth failed to properly investigate the chain of title at the time it issued the title insurance policy (see Citibank v Chicago Tit. Ins. Co. , 214 AD2d 212, 216-219 [1st Dept 1995], lv dismissed  87 NY2d 896 [1995]).
Contrary to the court's finding, there was no issue of fact as to whether Emigrant gave Commonwealth timely notice of the adverse interest possessed by the Estate of Dillard Matthews, Jr. against the property. The record establishes that Emigrant provided Commonwealth with such notice at the time Emigrant initiated the title claim process in October 2009 (see Unigard Sec. Ins. Co. v North Riv. Ins. Co. , 79 NY2d 576, 581-582 [1992]). Thus, the proper basis upon which Emigrant's cross motion should have been granted, and [*2]Commonwealth's motion denied, was that Emigrant refuted Commonwealth's late notice defense, and was entitled to indemnification and payment on its claim pursuant to the subject insurance policy.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 31, 2015
CLERK


