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SHORT FORM ORDERSUPREME COURT - STATE OF NEW YORKCOUNTY OF NASSAU - PART19Present:56:HON. WILLIAM R. LaMARCAJusticeMotion Sequence # 004 , # 005126 HOLDING LLC and DENNIS TUBIAN,Submitted January 4 , 2007Plaintiffs,INDEX NO: 11254/05-against-ANGEL YN D. JOHNSON, ESQ., JASON CHANG,ESQ., and FIDELITY NATIONAL TITLE INSURANCECOMPANY OF NEW YORK,Defendants.The following papers were read on this motion:Notice of Motion. . .Notice of Cross- Motion. . . . .Reply Affrmation and in Opposition to Cross- Motion.Reply Affi rmation.Plaintiffs , 126 HOLDING, LLC and DENNIS TUBIAN , move for an order grantingsummary judgment against defendant ,FIDELITY NATIONAL TITLE INSURANCECOMPANY OF NEW YORK (hereinafter referred to as " FIDELITY" ), compelling it toindemnify plaintiffs in the amount of the title insurancepolicy.FIDELITY opposes themotion and cross-moves for an order denying plaintiffs ' motion and granting FIDELITYsummary judgment. The motion and cross-motion are determined as follows:
In July 2002 ,plaintiff, 126 HOLDING LLC (hereinafter referred to as the " plaintiff'purchased a mortgage encumbering two apartment buildings located in Brooklyn , knownas 516 and 518 Chauncy Street.In connection with its acquisition , the plaintiff obtainedtitle insurance from FIDELITY. At the time of plaintiff' s purchase , a 1997 prior-commencedaction to foreclose upon the properties was already pending in the Supreme Court , KingsCounty. In December 2001tax foreclosureIn rem, the City of New York commenced anproceeding against one of the properties - 516 Chauncy Street (hereinafter referred to astheIn Rem action No. 47). Subsequently, plaintiff commenced its own foreclosureactionand then later successfully moved to have both the 1997 foreclosure action and its ownaction consolidated for trial.In September 2002 , the City obtained a judgment of foreclosure in theIn Remaction#47 , which judgment was later entered in the Kings County Clerk' s office on February 202003. In August 2003 , the plaintiff obtained its own judgment in the consolidatedforeclosure action. However , in November 2003 , and by virtue of theIn Remaction #47foreclosure, the City of New York conveyed 516 Chauncy Street to a third part,with theresult that the mortgage purchased by plaintiff and insured by FIDELITY was no longersecured by 516 Chauncy Street.Thereafter , the plaintiff filed a claim under the FIDELITY title insurance policy, whichclaim was denied on the ground that the policyexcluded theIn Remallegedly referred to, excepted andaction #47 from coverage. Prior to the issuance of its final policy,FIDELITY issued a title commitment through its agent , Landmark Abstract Associates , Inc.FIDELITY claims that Schedule " B" of the title commitment providesinter aliathat
(h)ereinafter set forth are additional matters which wil appear in our policy as exceptionsfrom coverage * * * 2. " (t)axes , tax liens , tax sales * * * set forth herein " and that annexedto the title commitment was a tax search prepared by " Express Research Services(hereinafter referred to as " EXPRESS" ), which made reference to , among other things , theNew York City tax proceeding by recounting:FORECLOSURE"It is FIDELITY' sIn Remposition that ,action #47 filed 8/19/01 POSSIBLEwhen it issued its final title policy, itincluded the same schedule " B" language referring to " taxes , tax liens and tax sales " andalso annexed thereto a copy of tax search prepared by EXPRESS.By summons and complaint dated July 2005 , the plaintiff commenced the instantaction alleging legal malpractice against the attorneys whom it retained in connection withthe purchase. The plaintiffs fifth cause of action also contained a separately interposedclaim against FIDELITY alleging that FIDELITY wrongfully breached its insurance contractby disclaiming coverage.Plaintiff denied that the tax search performed by EXPRESS was annexed to orincluded with the final policy which was later issued by FIDELITY. It is plaintiffs positionthat , while Schedule " B" annexed to the final policy identifies certain exceptions including,inter aliataxes, tax liens and tax sales , there is nothing in Schedule " B" which refers tothe EXPRESS tax search or which incorporates by reference annexed documents or listsprepared by third party providers.By Short Form Order , dated March 22 , 2006 , the Court denied FIDELITY' spre-answer motion to dismiss and found that , in light of the conflicting inferences to be drawnfrom the evidence submitted , the Court could not conclude that the annexed
documentation conclusively established that the EXPRESS tax search was made part ofthe final policy or , assuming that it was annexed as claimed , that it could be definitivelyviewed as supplementing the exceptions referenced in Schedule " B" of the policy. TheCourt found that " (t)o negate coverage by virtue of an exclusion , an insurer must establishthat the exclusion is stated in clear and unmistakable language , is subject to no otherreasonable interpretation and applies in the particular case , . . . and that its interpretationof the exclusion is the ' onlyNeck Bagels, Inc. vGAIns.construction thatCo. ofNew York 241 AD2d 66 , 671 NYS2d 661998), quoting from , Vinocur s Inc. v CNA Ins. Cos. 132 AD2d 543 , andAssur. Co. v Port Auth.66 AD2d 269;Co. ofDept.American Homesee also , Continental Cas. Co. v Rapid-Americanct. , Corvetti v FideliyCorp. 80 NY2d 640 , 593 NYS2d 966 , 609 NE2d 506 (C. A. 1993);Nat. Title Ins.(Throgs(could) fairly be placed thereonNew York 258 AD2d 32 , 691 NYS2d 645 (3rd Dept. 1999)).On the present motion , the plaintiff argues that , assumingthat the allegedarguendotax search was annexed to the final title policy, FIDELITY can not meet its burden ofdemonstrating 1) that the exclusion was stated in clear unmistakable language , 2) that theexclusion is subject to no other reasonable interpretation , 3) that the exclusion applies inthis particular case ,and 4) that FIDELITY' sinterpretation of the exclusion is the onlyconstruction that can fairly be placed thereon. It is argued that FIDELITY cannot establishanyone of these elements and , therefore, theIn RemAction No. 47 was neither excludednor excepted from the policy and plaintiff is entitled to judgment as a matter of law.In opposition to the motion and in support of its cross-motion , FIDELITY points outthat plaintiffs had actualknowledge of theIn RemAction No. 47becauseplaintiffs
counsel , defendant , ANGEL YN D. JOHNSON, advised plaintiffs of same and the TitleCommitment provided to plaintiffs contained a specific reference to same. The Court notesthat by Short Form Order , dated May 15 , 2006 , the Court denied JOHNSON' s motion forsummary judgment and found that " (a) question of fact remains whether JOHNSON toldplaintiffs about the in rem tax foreclosure proceeding as she asserts , or whether she didnot , as plaintiffs assert" . FIDELITY argues herein that plaintiffs ' motion is misguidedIn Rembecause plaintiffs had actual knowledge of theaction because plaintiffs ' counselhad actual knowledge and , as a matter of law , plaintiffs ' counsel' s knowledge is imputedto plaintiffs. It urges that plaintiffs ' motion be denied and that FIDELITY be grantedsummary judgment because plaintiffs ' claim under the Title policy must be denied as itAction No. 47, Moreover , it asserts that plaintiffsIn Remassumed and/or agreed to thecaused their own loss by failing to file a property registration card with the City of New Yorkand were , therefore, not sent a post-judgment notice of theIn RemAction on March 212003, advising them that the property could be redeemed.In viewing motions for summary judgment , it is well settled that summary judgmentis a drastic remedy which may only be granted where there is no clear triable issue of fact(see, Andre v Pomeroy,Mosheyev v Pilevsky,35 NY2d 361 ,362 NYS2d 131 , 320 NE2d 853 (C. A.283 AD2d 469 , 725 NYS2d 206 (2the color of a triable issue, forecloses the remedy594 NYS2d 354 (2Dept. 1993)).1974);Dept. 2001). Indeed, lI (e)venRudnitsky v Robbins,191 AD2d 488Moreover lI (i)t is axiomatic that summary judgmentrequires issue finding rather than issue-determination and that resolution of issues ofcredibility is not appropriate(Greco v Posillco,290 AD2d 532 , 736 NYS2d 418 (2Dept.
2002); Judice v DeAngelo 272 AD2d 583 , 709 NYS2d 817 (2Dept. 2000); see alsoCapelinAssociates, Inc. v Globe Mfg. Corp. 34 NY2d 338 , 357 NYS2d 478 313 NE2d 776(C. A.1974)), Further , on a motion for summary judgment , the submissions of the opposingpart'Glover v Citys pleadings must be accepted as true (see748 NYS2d 393 (2ofNew York 298 AD2d 428Dept. 2002)). As is often stated , the facts must be viewed in a lightmost favorable to the non-moving party. (SeeThe burdenMosheyev v Pilevsky, supra).entitlement toprima facieon the moving party for summary judgment is to demonstrate ajudgment as a matter of law by tendering sufficient evidence to demonstrate the absence(Ayotte v Gervasio 81 NY2d 1062 601 NYS2d 463 619 NE2dof any material issue of fact400 (C. A.1993);Drago v King,283 AD2d 603, 725 NYS2d 859 (2Dept. 2001).After a careful reading of the submissions herein , it is the judgment of the Court thatample issues of fact exist to preclude the granting of summary judgment. Although eachpart assertsthattheir interpretation of the facts is the only logical interpretation herein , theCourt is unconvinced on the record before it that either party is entitled to judgment as amatter of law. Issues of credibility are the province of the trier offact and are not properlydetermined in a motion for summary judgment.Cf, Heller v TrusteesofEast Hampton166 AD2d 554 , 560 NYS2d 836 (2 Dept. 1990). Accordingly, it is herebyORDERED that plaintiffs ' motion for summary judgment is denied; and it is furtherORDERED that FIDELITY' s cross-motion for summary judgment is denied as well.
.-.--All further requested relief not specifically granted is denied.This constitutes the decision and order of the Court.Dated: April 6 , 2007t--WILLIAM R. LaMARCA , J.TO:Greshin , Ziewgler & Amicizia , LLPAttorneys for Plaintiffs199 East Main StreetSmithtown , NY 1187EN1RED?R '\ 2Thomas P. Malone , Esq., NY 10118Attorney for Defendant Fidelity National Title Insurance Company of New York350 Fifth Avenue , Suite 5016New YorkJohn D. Lewis , Esq.Attorney for Defendant Angelyn D. Johnson , Esq.26 Court Street , Suite 1812Brooklyn , NY 11242McDonough , Marcus , Cohen , Tretter , Heller & Kanca , LLPAttorneys for Defendant Jason Chang, Esq.145 Huguenot StreetNew Rochelle , NY 10801126holding&tuban-johnson chang, fidelity, #04 #05/sumjudgN"S",UCOliN'LGGIGau'( CLE.RK'S OFFIC
Thereafter, the plaintiff filed a claim under the FIDELITY title insurance policy, which claim was denied on the ground that the policy allegedly referred to, excepted and excluded the In Rem action #47 from coverage. Prior to the issuance of its final policy, FIDELITY issued a title commitm
