

Hayes v Assets Recovery Ctr. Invs., LLC (2015 NY Slip Op 01984)





Hayes v Assets Recovery Ctr. Invs., LLC


2015 NY Slip Op 01984


Decided on March 12, 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 12, 2015

Gonzalez, P.J., Tom, Richter, Manzanet-Daniels, Kapnick, JJ.


14483 104217/11

[*1] Sharay Hayes, Plaintiff-Respondent,
vAssets Recovery Center Investments, LLC, et al., Defendants-Appellants, John Olsen, et al., Defendants.


Stim & Warmuth, P.C., Farmingville (Glenn P. Warmuth of counsel), for appellants.
Davis Ndanusa Ikhlas & Saleem, LLP, Brooklyn (Mustapha Ndanusa of counsel), for respondent.

Order, Supreme Court, New York County (Paul Wooten, J.), entered on or about November 29, 2013, which, to the extent appealed from, denied in part defendants' motion to dismiss and for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and the first, second, sixth, seventh and eighth causes of action dismissed. The Clerk is directed to enter judgment dismissing the complaint.
Defendants definitively showed that they were the holders of the mortgage loan at the time plaintiff entered into the release through the MERS Milestones printout (see generally Matter of MERSCORP, Inc. v Romaine, 8 NY3d 90 [2006]). Plaintiff failed to show that the bringing of a foreclosure action was a breach of the parties' mutual release, where that release expressly reserved defendants' right to bring such a proceeding. Finally, defendant 1M's bringing a holdover proceeding against plaintiff's subtenant, which it withdrew in the face of the subtenant's motion to dismiss, was not a breach of the release's promise that 1M would negotiate a one year lease with plaintiff. In light of these findings, plaintiff's claims for fraud in the inducement and breach of the release should have been dismissed. This necessitated the dismissal of the alter ego and conspiracy claims as well.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 12, 2015
CLERK


