GEM SERVICES OF NEW YORK INC v. UNITED GENERAL TITLE INSURANCE COMPANY (2006)

In an action to recover damages, inter alia, for the negligent failure to timely record a mortgage, the defendant appeals from an order of the Supreme Court, Richmond County (Giacobbe, J.), dated January 13, 2005, which, among other things, denied those branches of its motion which were to dismiss the complaint pursuant to CPLR 3211(a)(7) and CPLR 3212.

ORDERED that the order is affirmed, with costs.

 On a motion to dismiss an action pursuant to CPLR 3211(a)(7), the court must accept the factual allegations of the complaint as true, accord the plaintiff all favorable inferences which may be drawn therefrom, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  Hayes v. Wilson, 25 A.D.3d 586, 807 N.Y.S.2d 567;  Sinensky v. Rokowsky, 22 A.D.3d 563, 802 N.Y.S.2d 491).   Furthermore, “[u]nder CPLR 3211 a trial court may use affidavits in its consideration of a pleading motion to dismiss” (Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635, 389 N.Y.S.2d 314, 357 N.E.2d 970;  see Fay Estates v. Toys “R” Us, Inc., 22 A.D.3d 712, 803 N.Y.S.2d 135).   Here, the plaintiff's allegations that the defendant, through its agent, undertook to record the plaintiff's mortgage, but failed to do so in a timely manner, state a cognizable cause of action to recover damages for negligence which is independent of the parties' contract of insurance (see Cruz v. Commonwealth Land Tit. Ins. Co., 157 A.D.2d 333, 556 N.Y.S.2d 270).   Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action.

The Supreme Court also properly denied that branch of the defendant's motion which was for summary judgment dismissing the complaint pursuant to CPLR 3212.   The defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law by submitting evidence demonstrating, inter alia, that it exercised due care with respect to the recording of the mortgage.

The defendant's remaining contentions are without merit.