                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: April 16, 2015                      519093
________________________________

ANGELO RUOTOLO,
                      Appellant,
     v                                        MEMORANDUM AND ORDER

FANNIE MAE et al.,
                    Respondents.
________________________________


Calendar Date:    February 19, 2015

Before:   Peters, P.J., McCarthy, Rose and Clark, JJ.

                               __________


     Angelo Ruotolo, Cornwall, appellant pro se.

      Sweeney Gallo Reich & Bolz, LLP, Rego Park (Rashel M.
Mehlman of counsel), for Fannie Mae, respondent.

      Catania, Mahon, Milligram & Rider, PLLC, Newburgh (Ari I.
Bauer of counsel), for Patty Conti and others, respondents.

                               __________


Clark, J.

      Appeal from an order of the Supreme Court (Mott, J.),
entered March 12, 2014 in Ulster County, which granted
defendants' motions to dismiss the complaint.

      Plaintiff commenced the instant action pro se in November
2013 alleging that defendants Patty Conti, Patty Conti Realty,
Margaret Stewart and Marilyn VanAken (hereinafter collectively
referred to as the realty defendants) had breached a fiduciary
duty to him and engaged in deceptive business practices and false
advertising (see General Business Law §§ 349, 350), and that
defendant Fannie Mae had also engaged in deceptive business
practices and false advertising. These allegations – which stem
                              -2-                519093

from plaintiff's unsuccessful attempt to purchase a foreclosed
property in the Town of New Paltz, Ulster County – had formed
part of a federal action that was initiated by plaintiff in early
2012 and dismissed in March 2013 without prejudice to plaintiff's
right to pursue his state law causes of action in state court
(see Ruotolo v Fannie Mae, 933 F Supp 2d 512 [SD NY 2013], appeal
dismissed 2013 US App LEXIS 16911 [2d Cir, June 5, 2013, No.
13-1307]). After the instant complaint was filed and served,
both the realty defendants and Fannie Mae moved for dismissal of
the complaint pursuant to CPLR 3211 (a) (5) and (7). Supreme
Court granted the motions and dismissed the complaint, and
plaintiff now appeals arguing that the complaint must be
reinstated because the decision to grant defendants' motions to
dismiss was based on a ruling that did not fully consider the
documents he submitted.

      Preliminarily, we note that defendants' pre-answer motions
to dismiss were both timely served and, therefore, properly
entertained by Supreme Court. Next, we do not agree that Supreme
Court failed to consider papers timely filed in opposition to
Fannie Mae's motion. Rather, based upon the content of Supreme
Court's well-reasoned decision, we conclude that these papers
were, in fact, considered – as they should have been – and that
the lack of specific reference thereto at the end of the decision
was likely a typographical oversight. Contrary to plaintiff's
argument on appeal, the record demonstrates that Supreme Court
applied the appropriate legal standards in determining this
motion to dismiss (see 511 W. 232nd Owners Corp. v Jennifer
Realty Co., 98 NY2d 144, 151-152 [2002]; Sokoloff v Harriman
Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Leon v Martinez, 84
NY2d 83, 87-88 [1994]; Gizara v New York Times Co., 80 AD3d 1026,
1030 [2011]) and afforded plaintiff every possible inference
while liberally construing the allegations within the complaint.

       Finally, plaintiff has abandoned any issues related to the
merits of the dismissal of his complaint, as his brief is silent
on the issues of statutes of limitations and the elements
required to successfully assert a cause of action for fraud (see
Lindquist v County of Schoharie, 126 AD3d 1096, ___, 2015 NY Slip
                                -3-                  519093

Op 01852, *1 n 1 [2015]).1 In any event, were we to address the
merits, we would nonetheless stand by Supreme Court's
determinations that plaintiff's causes of action fell outside the
applicable statutes of limitation (see CPLR 214 [2]; Corsello v
Verizon N.Y., Inc., 18 NY3d 777, 789-790 [2012]) and that
plaintiff had failed to state a cause of action for fraud against
Fannie Mae and the realty defendants (see Eurycleia Partners, LP
v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]; McColgan v
Brewer, 112 AD3d 1191, 1193 [2013], lv denied 24 NY3d 911 [2014];
see also CPLR 3016 [b]).

        Peters, P.J., McCarthy and Rose, JJ., concur.



        ORDERED that the order is affirmed, without costs.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court




    1
        While the realty defendants filed a brief with respect to
the subject appeal, they correctly noted that the only issue
before this Court is whether Supreme Court erred in not
considering certain documents submitted in opposition to Fannie
Mae's pre-answer motion to dismiss. On this basis, the realty
defendants took no position with respect to this issue but argued
that plaintiff's general request to reinstate the complaint
should be denied.
