858 N.Y.S.2d 660 | N.Y. App. Div. | 2008
Ordered that the order is reversed, on the law, with costs, the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7) is granted, and the plaintiffs cross motion for leave to amend the complaint is denied.
The plaintiff and the defendant entered into a written agreement by which the defendant agreed to act as mortgage broker for the plaintiff. For procuring a mortgage loan for the plaintiff, the defendant was to receive a fee from the plaintiff in an amount equal to one point on the loan. The written agreement between the plaintiff and the defendant established that the defendant would be eligible to receive a premium based on the interest rate of the loan, and that the maximum consideration the defendant would receive from the mortgage lender would be two points. With the defendant’s assistance, the plaintiff obtained a mortgage loan from a nonparty mortgage lender. The HUD-1 settlement statement executed by the plaintiff at the closing disclosed that a “yield spread premium” of $6,000, or two points on the loan, would be paid by the lender to the defendant. The plaintiff claims, inter alia, that the yield spread premium constituted a “bribe” or “kickback” in exchange for the defendant obtaining the plaintiffs agreement to enter into a mortgage with an interest rate above the “par” or “market” rate.
To assert a viable claim under General Business Law § 349 (a), a plaintiff must plead (1) that the challenged conduct was consumer-oriented, (2) that the conduct or statement was materially misleading, and (3) damages (Lum v New Century
The Supreme Court should also have granted that branch of the defendant’s motion which was to dismiss the cause of action to recover damages for breach of fiduciary duty. The plaintiff failed to show that a fiduciary relationship existed between him and the defendant (see Lum v New Century Mtge. Corp., 19 AD3d at 559; see also Masada Universal Corp. v Goodman Sys. Co., 121 AD2d 518 [1986]; see generally EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11 [2005]; cf. Langer v Haber Mtges., Ltd., NYLJ, Aug. 2, 1995, at 26, col 4).
“The causes of action to recover damages for unjust enrichment and money had and received are quasi-contract claims, and therefore are not viable where, as here, it is undisputed that the parties entered into an express agreement” (see Lum v New Century Mtge. Corp., 19 AD3d at 559-560). Accordingly, the issue of whether the yield spread premium was improper is governed by the agreement, and therefore, the defendant was entitled to dismissal of the plaintiffs quasi-contract claims (id. at 559-560).
Leave to amend a complaint is to be freely granted, provided that the proposed amendment does not prejudice or surprise the defendant, is not patently devoid of merit, and is not palpably insufficient (see CPLR 3025 [b]; Pellegrini v Richmond County Ambulance Serv., Inc., 48 AD3d 436 [2008]; AYW Networks v Teleport Communications Group, 309 AD2d 724, 725 [2003]). With regard to the plaintiffs proposed fraud cause of action, “[t]he essential elements of a cause of action sounding in fraud are a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury” (Orlando v Kukielka, 40 AD3d 829, 831 [2007]; see Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]). The plaintiff failed to allege a material omission of fact which was false and which the defendant knew to be false. With regard to the plaintiff’s proposed demand for punitive
In light of our determination, we need not reach the defendant’s remaining contention. Miller, J.P., Dillon, McCarthy and Chambers, JJ., concur. [See 2007 NY Slip Op 32760(U).]