CHICAGO TITLE INSURANCE COMPANY v. CROSSROADS ABSTRACT CORP (2022)

This action arises from a sale of real property by defendant Petr Senichak to nonparty Maria Palacio. Plaintiff, Chicago Title Insurance Company, issued a title-insurance policy to Palacio's mortgagee in connection with the sale. Plaintiff alleges that its issuance of the policy relied on an affidavit by Senichak representing that no unsatisfied judgments existed against the property. Plaintiff further alleges that this representation turned out to be false, and that as a result, plaintiff had to pay out $44,000 on the policy to satisfy a prior judgment and avoid a sheriff's sale of the mortgaged property.¹

Senichak has not appeared in the action. Plaintiff now moves for default judgment under CPLR 3215. The motion is granted in part and denied in part.

Plaintiff has shown proper service of the complaint on Senichak and his default. (See NYSCEF No. 3 [affidavit of service].) On the merits, plaintiff has established through its verified complaint that it is entitled to default judgment on the principal amount sought of $44,000. (See NYSCEF No. 1 [verified complaint]; CPLR 3215 [f].)

Plaintiff also seeks prejudgment interest on this sum. The interest analysis is slightly more involved. CPLR 5001 requires the award of prejudgment interest on “a sum awarded because of a breach of performance of a contract,” or because of an act or omission interfering with title to, or possession or enjoyment of, real property; and permits the award of prejudgment interest “in an action of an equitable nature.” (CPLR 5001 [a].) Here, plaintiff did not have an agreement with Senichak, and Senichak's conduct did not interfere with any interest of plaintiff in real property.

However, plaintiff's common-law-indemnification claim sounds in quasi-contract. (See McDermott v City of New York, 50 NY2d 211, 216-217 [1980]). And although “[c]onceptually, implied indemnification finds its roots in the principles of equity,” the quasi-contractual vehicle for imposing that indemnification “is implied by law.” (Id.) Because plaintiff's claim is both contractual and legal in nature, this court is required to award prejudgment interest to plaintiff under CPLR 5001 (a). (See Trumbull Equities LLC v Mt. Hawley Ins. Co., 2020 NY Slip Op 50887[U], at *11 [Sup Ct, NY County July 27, 2020], affd as mod on other grounds 191 AD3d 587 [1st Dept 2021].) Interest should run from August 23, 2019, the date that plaintiff alleges it had to pay the $44,000 to satisfy the judgment against the property. (See NYSCEF No. 1 at ¶ 22.)

Plaintiff also seeks an award of attorney fees. But plaintiff does not identify a basis in statute, regulation, or contract for the claimed attorney fees. The request for fees is denied.

Accordingly, it is

ORDERED that plaintiff's motion under CPLR 3215 for default judgment against defendant Petr Senichak is granted to the extent that plaintiff is awarded judgment against Senichak for $44,000, with interest running at 9% from August 23, 2019, plus costs and disbursements as taxed by the Clerk on submission of an appropriate bill of costs, and otherwise denied; and it is further

ORDERED that plaintiff serve a copy of this order with notice of its entry on all parties and on the office of the County Clerk, which shall enter judgment accordingly.

FOOTNOTES

1.   Plaintiff also sued a title abstract company, defendant Crossroads Abstract Corp., which allegedly failed to identify the prior judgment recorded against the property when performing a title search. Plaintiff has since discontinued its action as against Crossroads. (See NYSCEF No. 24.)

Gerald Lebovits, J.