Crispino v. Greenpoint Mortgage Corp.

In an action, inter alia, to set aside a deed on the ground of forgery, the defendant Jack Beige appeals from an order of the Supreme Court, Suffolk County (Seidell, J.), dated July 26, 2002, which denied his motion for summary judgment dismissing the second through sixth causes of action in the amended verified complaint insofar as asserted against him.

Ordered that the order is reversed, on the law, with costs, and the motion is granted.

The plaintiff and her late husband Louis Crispino (hereinafter Crispino) owned a residence in West Islip, as tenants by the entirety. In 1999 Crispino obtained a loan secured by a mortgage on the property as the apparent sole owner, based upon a deed purportedly conveying the plaintiffs interest in the property to him. The mortgage was obtained from the defendant Midlantic Mortgage Bank, formerly known as Royal Mortgage Bankers,

While the appeal was pending, the appellant moved pursuant to CPLR 3212 for summary judgment dismissing the second through sixth causes of action in the amended verified complaint insofar as asserted against him. The Supreme Court denied the motion. We reverse.

The appellant demonstrated his prima facie entitlement to judgment as a matter of law dismissing the second through sixth causes of action insofar as asserted against him by establishing that the plaintiff, who has now been awarded the equitable relief demanded in her complaint, has not suffered any damages arising from the fraudulent conveyance and mortgage transaction (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). In opposition, the plaintiff failed to submit evidentiary proof in admissible form sufficient to raise a triable issue of fact that she has suffered compensatory damages due to the fraud (see CPLR 3212 [b]; Alvarez v Prospect Hosp., supra at 324 ; Zuckerman v City of New York, 49 NY2d 557 , 562 [1980]). The affirmation of the plaintiffs attorney, standing alone, was insufficient to raise a question of fact in that regard (see Falkowitz v Peters, 294 AD2d 330 [2002]).

Contrary to the plaintiffs contention, she is not entitled to punitive damages, as she made no such demand in her complaint. In any event, such damages are available only in cases where the alleged fraud “is aimed at the public generally, is gross, and involves high'moral culpability” (Kelly v Defoe Corp., 223 AD2d 529 [1996]; see Vasilopoulos v Romano, 228 AD2d 669 [1996]). The appellant’s conduct in this case does not warrant the imposition of punitive damages.

The plaintiff is not entitled to an award of an attorney’s fee

The plaintiff’s cause of action to recover damages for intentional infliction of emotional distress must be dismissed because the appellant’s conduct did not rise to the level of extreme and outrageous conduct which is necessary to sustain such a cause of action (see Murphy v American Home Prods. Corp., 58 NY2d 293 , 303 [1983]; Glatter v Chase Manhattan Bank, supra; Vasilopoulos v Romano, supra). In addition, the cause of action to recover damages for negligent infliction of emotional distress must be dismissed since the appellant’s conduct did not unreasonably endanger the plaintiffs safety or cause her to fear for her safety (see Davies v County of Nassau, 260 AD2d 531 [1999]; Losquadro v Winthrop Univ. Hosp., 216 AD2d 533 [1995]; Glendora v Gallicano, 206 AD2d 456 [1994]). Finally, the cause of action to recover damages for conspiracy to commit fraud must be dismissed since “a mere conspiracy to commit a fraud is never of itself a cause of action” (Brackett v Griswold, 112 NY 454 , 467 [1889]; see Alexander & Alexander of N.Y. v Fritzen, 68 NY2d 968 , 969 [1986]). Accordingly, the Supreme Court should have granted the appellant’s motion for summary judgment dismissing the second through sixth causes of action insofar as asserted against him. Santucci, J.P., Luciano, Schmidt and Adams, JJ., concur.