Moshe Benezra, Plaintiff, v. ROCKET MORTGAGE LLC ROCKET CLOSE LLC AMROCK LLC JOHN GAVARES NY APPRAISALS INC (2026)

The papers electronically filed in NYSCEF as documents numbered 5-9 and 16-53 have been read and considered on this pre-answer motion to dismiss filed on behalf of defendants, Rocket Companies, Inc. ("Rocket Companies"), Rocket Mortgage, LLC ("Rocket Mortgage"), and Rocket Close, LLC (f/k/a Amrock, LLC) ("Rocket Close") (together, "Defendants").

Plaintiff commenced this action on March 10, 2026, by filing a Summons and Verified Complaint seeking damages against Defendants arising out of his purchase of the property known as 5 Parliament Drive, New City, NY (the "Property"). Plaintiff alleges that he entered into a contract of sale to purchase the Property for $610,000.00 contingent upon the Property being appraised for $590,000.00 or more.

Plaintiff applied and was eventually approved for a $300,000.00 loan from Rocket Mortgage (the "Loan"). As part of its review process, Rocket Mortgage obtained a Uniform Residential Appraisal Report (the "Appraisal") prepared by defendant John Gavares, on or about April 14, 2023, valuing the property at $615,000.00. Plaintiff disputed the valuation and it remained unchanged in the final Appraisal issued on April 17, 2023. Plaintiff eventually proceeded with the closing of the Property on May 19, 2023, and executed a note in the amount of $300,000.00 in favor of Rocket Mortgage, LLC (the "Lender"). Plaintiff currently remains the owner of the Property.

Plaintiff asserts two causes of action in his complaint against the Defendants alleging: (1) negligence and gross negligence (First Cause of Action); and (2) violation of General Business Law § 349 (Second Cause of Action). The causes of action are based on Plaintiff's claim that the Defendants withheld material information from the appraiser -- resulting in an erroneous increased valuation of the Property -- compelling Plaintiff to close on the Property or risk forfeiting his downpayment. Defendants make this pre-answer motion to dismiss the complaint pursuant to Civil Practice Law and Rules §§ 3211(a)(1) and (7).

On a motion to dismiss for failure to state a cause of action, the complaint must be construed liberally, the factual allegations must be deemed to be true, the plaintiff is afforded every possible favorable inference, and a determination is made only as to whether the facts as alleged fit within any cognizable legal theory. See Leon v Martinez, 84 NY2d 83, 87—88 [1994]. The court is limited to "an examination of the pleadings to determine whether they state a cause of action," and the "plaintiff may not be penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face." Miglino v Bally Total Fitness of Greater NY, Inc., 20 NY3d 342, 351 [2013]. However, the complaint "must contain allegations concerning each of the material elements necessary to sustain recovery under a viable legal theory." Matlin Patterson ATA Holdings LLC v Federal Express Corp. 87 AD3d 836 [1st Dept 2011] quoting Huntington Dental & Med. Co. v. Minnesota Mining & Mfg. Co.), 1998 WL 60954 [S.D.N.Y.1998])

To prevail on a negligence or gross negligence claim, "a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom." Solomon v City of New York, 66 NY2d 1026, 1027[1985]. In the absence of a duty, as a matter of law, there can be no liability. See id. at 1028; See also Lauer v City of New York, 95 NY2d 95, 100 [2000] ["(w)ithout a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm"]. The definition and scope of an alleged tortfeasor's duty owed to a plaintiff is a question of law. See Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 585 [1994]. "To constitute gross negligence, a party's conduct must smack of intentional wrongdoing or evince a reckless indifference to the rights of others." Ryan v IM Kapco, Inc., 88 AD3d 682, 683 [2d Dept 2011] [alterations and internal quotation marks omitted]). "Stated differently, a party is grossly negligent when it fails to exercise even slight care ... or slight diligence." Id. [internal quotation marks omitted]; See Goldstein v Carnell Assoc., Inc., 74 AD3d 745, 747 [2d Dept 2010]. Ordinarily, the question of gross negligence is a matter to be determined by the trier of fact. See Food Pageant v Consolidated Edison Co., 54 NY2d 167, 172—173 [1981].

Here, Plaintiff has not alleged any facts showing that Defendants owed Plaintiff a duty of care. Plaintiff simply asserts that Defendants had a duty of "reasonable care in directing, coordinating, transmitting information relating to and reviewing the appraisal prepared for the Subject Property," but do not cite any case law acknowledging this as a duty of care. Case law instead supports the proposition that a lender does not have a duty of care toward a loan applicant. See Lombard v Booz-Allen & Hamilton, Inc., 280 F3d 209, 217 [2d Cir 2002]; See also Genna v Sallie Mae, Inc., No. 11-CV-7371 (LBS), 2012 WL 1339482 (S.D.NY Apr. 17, 2012) (finding that no fiduciary duty or duty as a result of a special relationship generally exists between a lender and a borrower); Dobroshi v Bank of Am., N.A., 886 NYS2d 106, 109 (1st Dept 2009) ("This court has repeatedly held that an arm's length borrower-lender relationship is not of a confidential or fiduciary nature "). As such, Plaintiff's claim for negligence and gross negligence is dismissed.

Contrary to Plaintiff's contentions, the factual allegations set forth in the Complaint fail to set forth a viable cause of action to recover damages from Defendants for violations of General Business Law § 349. General Business Law § 349 is a broad consumer protection statute, which declares "deceptive acts or practices in the conduct of any business, trade or commerce" to be unlawful. General Business Law § 349[a]; See North State Autobahn, Inc. v Progressive Ins. Group Co., 102 AD3d 5 [2d Dept 2012]; See also Flax v Lincoln Natl. Life Ins. Co., 54 AD3d 992 [2d Dept 2008]. A party claiming the benefit of General Business Law § 349 must, as a threshold matter, " 'charge conduct that is consumer oriented.' " North State Autobahn, Inc. v Progressive Ins. Group Co., 102 AD3d at 11—12, quoting New York Univ. Continental Ins. Co., 87 NY2d 308, 320 [1995]. "The single shot transaction, which is tailored to meet the purchaser's wishes and requirements, does not, without more, constitute consumer-oriented conduct for the purposes of this statute." North State Autobahn, Inc. v Progressive Ins. Group Co., 102 AD3d at 12 [internal quotation marks omitted]. Rather, the defendants' acts or practices "must have a broad impact on consumers at large." New York Univ. v Continental Ins. Co., 87 NY2d at 320.

Here, Plaintiff's General Business Law § 349 cause of action is predicated upon allegations that the Defendants required Plaintiff to pay for an appraisal without disclosing that it was intended solely for lender's use, that his appeal of the initial loan denial was mishandled and an interest rate-buy down incentive was initially denied. Essentially, Plaintiff alleges that he was forced to purchase the subject property for more than fair market value and finance it with a mortgage loan from Rocket Mortgage. These factual allegations are insufficient to show that the Defendants engaged in consumer oriented conduct that has an impact on the public at large and, as such, do not state a cause of action for violation of General Business Law § 349. See Flax v Lincoln Natl. Life Ins. Co., 54 AD3d 992 [2d Dept 2008]; See also Brooks v. Key Trust Co. N.A., 26 AD3d 628, 809 N.Y.S.2d 270 [3d Dept 2006]

In arriving at this decision, the Court has reviewed, evaluated, and considered all the issues framed by these motion papers and the failure of the Court to specifically mention any particular issue in this Decision and Order does not mean that it has not been considered by the Court in light of the appropriate legal authority.

Accordingly it is hereby,

ORDERED, that Defendants' motion to dismiss (Motion Seq. No. 1) is GRANTED for failure to state a cause of action; and it is further

ORDERED, that the First and Second causes of action are dismissed insofar as asserted against Defendants, Rocket Companies, Inc., Rocket Mortgage, LLC and Rocket Close, LLC (f/k/a Amrock, LLC).

The foregoing constitutes the Decision and Order of this Court as to Motion Seq. No. 1.

Dated: July 10, 2026

New City, New York

E N T E R:

HON. JOHN P. COLLINS, JR., J.S.C.

John P. Collins, Jr., J.