TSAI CHUNG CHAO v. CHAO

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Supreme Court, Appellate Division, First Department, New York.

TSAI CHUNG CHAO, Plaintiff–Respondent, v. James CHAO, etc., Defendant–Appellant.

6587

Decided: May 17, 2018

Friedman, J.P., Sweeny, Kapnick, Kahn, Oing, JJ. Graber PLLC, New York (Daniel Graber of counsel), for appellant. Melvin B. Berfond, New York (Michael Konopka of counsel), for respondent.

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about November 6, 2017, which denied defendant's motion for summary judgment dismissing the complaint and on his counterclaims, and granted plaintiff's motion to extend two notices of pendency, unanimously modified, on the law, to grant defendant's motion as to all claims relating to 330 East 38th Street, # 37N, and to deny plaintiff's motion to extend the notice of pendency on that condominium unit, and otherwise affirmed, without costs.

Plaintiff's deposition transcript, which defendant submitted with his initial motion papers, is admissible, because, although it is unsigned, it is certified (see Franco v. Rolling Frito–Lay Sales, Ltd., 103 A.D.3d 543, 962 N.Y.S.2d 54 [1st Dept. 2013];  CPLR 3116[a] ).  In addition, defendant submitted evidence that his lawyer mailed the transcript to plaintiff's counsel more than 60 days before the date of defendant's motion.  The transcript of the deposition of Hsian Fang Chao (not a party to this action) is not admissible, because defendant did not mail it until after the date of his motion (see Palumbo v. Innovative Communications Concepts, 175 Misc.2d 156, 157–158, 668 N.Y.S.2d 433 [Sup. Ct., N.Y. County 1997], affd 251 A.D.2d 246, 675 N.Y.S.2d 37 [1st Dept. 1998] ).

Defendant (plaintiff's son) demonstrated through plaintiff's own deposition testimony that plaintiff agreed to give 330 East 38th Street, # 37N, to defendant without reserving the right to have it reconveyed to him upon request.  Hence, defendant made a prima facie case as to all causes of action insofar as 37N is concerned.  Even if, arguendo, plaintiff thought he was giving 37N directly to defendant, whereas he actually gave it to a trust benefitting defendant's daughter (his granddaughter), plaintiff can establish no injury, because, either way, he gave up the unit (see Vandashield Ltd. v. Isaacson, 146 A.D.3d 552, 553, 46 N.Y.S.3d 18 [1st Dept. 2017] ).

In opposition, plaintiff submitted an affidavit saying that there was an implicit understanding that defendant would reconvey 37N to him upon his request.  However, since it contradicts his deposition testimony, plaintiff's affidavit is insufficient to raise an issue of fact (see e.g. Perez v. Bronx Park S. Assoc., 285 A.D.2d 402, 404, 728 N.Y.S.2d 33 [1st Dept. 2001], lv denied 97 N.Y.2d 610, 740 N.Y.S.2d 694, 767 N.E.2d 151 [2002] ).

Defendant is not entitled to summary judgment dismissing plaintiff's claim concerning the other condominium unit at issue, 330 East 38th Street, # 37M.  Plaintiff's claim with respect to this unit is that defendant led him to believe that the documentation that defendant presented for his signature (a trust agreement and two deeds) was for the conveyance of 37N only.  In fact, the paperwork provided for the conveyance of both 37M and 37N to the trust.  Ordinarily a person is bound by the terms of an instrument he or she signs, and may not claim to have justifiably relied on false representations concerning the contents of a document that he or she failed to read without valid excuse (see e.g. Mendoza v. Akerman Senterfitt LLP, 128 A.D.3d 480, 482, 10 N.Y.S.3d 18 [1st Dept. 2015];  U.S. Legal Support, Inc. v. Eldad Prime, LLC, 125 A.D.3d 486, 487, 5 N.Y.S.3d 1 [1st Dept. 2015];  Sorenson v. Bridge Capital Corp., 52 A.D.3d 265, 266, 861 N.Y.S.2d 280 [1st Dept. 2008] ).  In this case, however, whether this principle applies to bar plaintiff's fraudulent inducement claim regarding 37M cannot be determined as a matter of law because plaintiff alleges that he and defendant, his son, had a relationship of trust and confidence (cf. Suttongate Holdings Ltd. v. Laconm Mgt. N.V., 160 A.D.3d 464, ––– N.Y.S.3d ––––, –––– [1st Dept. 2018] [recognizing the “well settled principle ․ that a party claiming fraudulent inducement cannot be said to have justifiably relied on a representation negated by the plain terms of a the contract (the parties) signed,” but holding the principle inapplicable to pleadings alleging that there had been an attorney-client relationship between the alleged wrongdoer and the claimant];  Sorenson, 52 A.D.3d at 266, 861 N.Y.S.2d 280 [noting that the “general rule” applies “in the absence of a confidential relationship”] ).