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

F & C GENERAL CONTRACTORS CORP., respondent, v. ATLANTIC MUTUAL MORTGAGE CORPORATION, et al., appellants, et al., defendants.

Decided: January 31, 2000

THOMAS R. SULLIVAN, J.P., WILLIAM D. FRIEDMANN, SANDRA J. FEUERSTEIN and NANCY E. SMITH, JJ. McMillan Constabile, LLP, Larchmont, N.Y. (William Maker, Jr., of counsel), for appellants. Alberi, Alberi & Alberi, Mount Vernon, N.Y. (Dante J. Alberi of counsel), for respondent.

In an action, inter alia, to foreclose a mechanic's lien, the defendants Atlantic Mutual Mortgage Corporation, Chicago Title Insurance Company, and Bartech Abstract Company appeal from a judgment of the Supreme Court, Westchester County (Colabella, J.), dated September 14, 1998, which, after a nonjury trial, and upon the denial of their motion to dismiss the complaint at the close of the plaintiff's case for failure to prove a prima facie case, and upon the granting of the plaintiff's motion to vacate a prior judgment of the same court (Silverman, J.), dated December 11, 1997, which was in favor of the appellants and against it dismissing the complaint and to conform the pleadings to the proof, is in favor of the plaintiff and against them in the principal sum of $18,500.

ORDERED that the judgment is modified, on the law, by deleting from the second decretal paragraph thereof the words “Atlantic Mutual Mortgage Corporation”, and adding thereto a provision granting that branch of the appellants' motion which was to dismiss the complaint insofar as asserted against that appellant;  as so modified, the judgment is affirmed, without costs or disbursements.

This action arises from the appellants' failure to satisfy a mechanic's lien filed by the plaintiff against certain property at the closing on the refinancing of the property.   At the close of the plaintiff's case the appellants moved to dismiss the complaint for failure to establish a prima facie case.   The Supreme Court denied the motion.   At the close of evidence, however, the Supreme Court dismissed the complaint and judgment was entered in favor of the appellants.   Subsequently, the plaintiff moved to vacate the judgment and to conform the pleadings to the proof.   The Supreme Court granted the motion and entered a new judgment in favor of the plaintiff.

The Supreme Court properly exercised its discretion in conforming the pleadings to the proof and in amending the complaint to assert a negligence cause of action against the appellants after judgment was entered in favor of the appellants (see, CPLR 3025[c];  Dittmar Explosives v. Ottaviano, Inc., 20 N.Y.2d 498, 502, 285 N.Y.S.2d 55, 231 N.E.2d 756).   The appellants had notice of the plaintiff's contention that the appellants Chicago Title Insurance Company (hereinafter Chicago Title) and Bartech Abstract Company (hereinafter Bartech Abstract), by their agent David Frost, were negligent in failing to follow closing instructions received from the plaintiff's counsel (see, Dauernheim v. Lendlease Cars, 238 A.D.2d 462, 656 N.Y.S.2d 671;  Weisberg v. My Mill Holding Corp., 205 A.D.2d 756, 613 N.Y.S.2d 680;  Matter of Honig, 213 A.D.2d 229, 623 N.Y.S.2d 862;  see also, Solomon v. City of New York, 66 N.Y.2d 1026, 499 N.Y.S.2d 392, 489 N.E.2d 1294;  Green v. State of New York, 222 A.D.2d 553, 554, 634 N.Y.S.2d 768).

Moreover, the evidence adduced at trial supports the court's finding of negligence as against Chicago Title and Bartech Abstract (see, Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369;  Epos Contr. Corp. v. Summit Renovation Corp., 250 A.D.2d 642, 671 N.Y.S.2d 696;  Astoria Fed. Sav. & Loan Assn. v. Thrift Assns. Serv. Corp., 237 A.D.2d 475, 655 N.Y.S.2d 977).

The Supreme Court erred, however, when it denied that branch of the appellants' motion which was to dismiss the complaint insofar as asserted against the appellant Atlantic Mutual Mortgage Corporation (hereinafter Atlantic Mutual) made at the close of the plaintiff's case.   The evidence proffered by the plaintiff at trial failed to establish a prima facie case of negligence as against Atlantic Mutual (see, Solomon v. City of New York, supra;  Green v. State of New York, supra ).

The parties' remaining contentions are without merit or improperly before us on appeal (see, 310 S. Broadway Corp. v. Barrier Gas Serv., 224 A.D.2d 409, 637 N.Y.S.2d 765).


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