The opinion
Fidelity Natl. Title Ins. Co. v Sky Abstract Corp.
2024 NY Slip Op 33104(U)
September 4, 2024
Supreme Court, New York County
Docket Number: Index No. 653378/2020
Judge: Louis L. Nock
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
INDEX NO. 653378/2020
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 09/04/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LOUIS L. NOCK PART 38M
Justice
---------------------------------------------------------------------------------X INDEX NO. 653378/2020
FIDELITY NATIONAL TITLE INSURANCE COMPANY,
09/14/2023,
Plaintiff, MOTION DATE 11/13/2023
-v- MOTION SEQ. NO. 002 003
SKY ABSTRACT CORP., JOSEPH KUNSTLINGER, and
NUCHEM ABER, DECISION + ORDER ON
MOTION
Defendants.
---------------------------------------------------------------------------------X
JOSEPH KUNSTLINGER,
Third-Party
Third-Party Plaintiff, Index No. 595627/2023
-against-
NUCHEM ABER, ALEXANDER ABER, NB1 1168 REALTY
LLC, and NATIONWIDE COURT SERVICES, INC.,
Third-Party Defendants.
--------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document numbers (Motion 002) 55, 56, 57, 58, 59,
60, 61, 65, and 66
were read on this motion to DISMISS .
The following e-filed documents, listed by NYSCEF document numbers (Motion 003) 67, 68, 69, 70, 71,
72, 73, 74, 75, 76, and 77
were read on this motion to DISMISS .
LOUIS L. NOCK, J.S.C.
This action, as alleged by plaintiff, arises out of a failure by defendant Sky Abstract Corp.
(“Sky”) to timely record a first mortgage insured by plaintiff and issued to defendant Nuchem
Aber (“Aber”) for a property located in Brooklyn, New York. Plaintiff asserts that Sky’s failure
to timely record the mortgage allowed Aber to transfer the property to his son Alexander, who
obtained a second mortgage on the property, leading to separate litigations, pursuant to which
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plaintiff was required to pay to settle claims involving the holder of the first mortgage. Further
details regarding the facts and circumstances of this action are set forth in the court’s decision
dated January 18, 2023 (NYSCEF Doc. No. 39), in which the court granted Aber’s motion to
dismiss the complaint against him.
Approximately six months after the court dismissed Aber from the action,
defendant/third-party Joseph Kunstlinger (“Kunstlinger”), the alleged guarantor of plaintiff’s
agreement with Sky, commenced a third-party action against: Aber; his son; the LLC to which
his son sold the property; and Nationwide Court Services Inc. (“Nationwide”). Kunstlinger
asserts a single cause of action for indemnification, arguing that Nationwide was contracted to
record the first mortgage but failed to do so in a timely manner, enabling the alleged scheme by
Aber and his son regarding the conveyance of the property and the second mortgage, and pitting
the two mortgage holders against each other while the elder and younger Abers pocketed the
profits, as alleged.
Presently before the court are Nationwide’s (Mot. Seq. No. 002) and Aber’s (Mot. Seq.
No. 003) motions to dismiss the third-party complaint. The motions are granted, for the reasons
set forth in the moving and reply papers (NYSCEF Doc. Nos. 56, 59, 66 [Seq. 002]; 68, 73, 75
[Seq. 003]) and the exhibits attached thereto, as summarized herein.
At the outset, Kunstlinger has no contractual relationship with any of the third-party
defendants. Any liability for indemnification in his favor, therefore, must be based on common
law principles. “[T]he key element of a common-law cause of action for indemnification is not a
duty running from the indemnitor to the injured party, but rather is a separate duty owed the
indemnitee by the indemnitor” (Raquet v Braun, 90 NY2d 177, 183 [1997]). “Common-law
indemnification is generally available in favor of one who is held responsible solely by operation
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of law because of his relation to the actual wrongdoer” (McCarthy v Turner Const., Inc., 17
NY3d 369, 375 [2011]).
Here, no relationship of any kind is alleged between Kunstlinger and Nationwide.
Nationwide is alleged to have been retained by Sky at plaintiff’s behest to file the mortgage; but,
assuming, for purposes of deciding the motion, that such an agreement existed between Sky and
Nationwide, the only duty imposed would flow from Nationwide to Sky and perhaps to Fidelity.
However, Kunstlinger – the individual guarantor of Sky’s obligation to plaintiff – is far too
attenuated from any duty potentially owed by Nationwide, to require Nationwide to indemnify
him. Contrary to Kunstlinger’s argument, there must be some duty between the indemnitor and
the indemnitee. The cases cited by Kunstlinger are not to the contrary (Mas v Two Bridges
Assocs., 75 NY2d 680, 691 [1990] [finding that elevator company must indemnify owner for
negligent maintenance claim where elevator company was contracted to maintain the elevator];
D'Ambrosio v City of N.Y., 55 NY2d 454, 463 [1982] [holding that adjoining landowner must
indemnify the City where plaintiff’s injuries were caused by erection of sidewalk appurtenance
installed for landowner’s special benefit]).
Turning to the third-party claim against Aber: in the prior decision dismissing the
complaint against Aber, this court stated that:
In the present action, Aber owed a duty only to Greenpoint[1] and MERS (before
MERS assigned its interest to Greenpoint) after Aber executed a mortgage against
the Premises in favor of MERS as nominee of Greenpoint. Aber was never a
party to the agreements between Greenpoint and Sky for title insurance, nor
between Sky and Plaintiff for the agency agreement. The duty breached was on
behalf of Sky which failed to timely record the First Mortgage.
1
The mortgagee.
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(Decision and Order, NYSCEF Doc. No. 39, at 6.) Kunstlinger is even further removed from
any duty owed by Aber than plaintiff is. As Aber owed no duty to Sky, it follows that Aber also
owed no duty to Sky’s guarantor – Kustlinger.
In addition, the third-party claim is functionally identical to the already dismissed claim
for indemnification against Aber. Therefore, the third-party claim is barred by the law of the
case doctrine (MBF Clearing Corp. v JPMorgan Chase Bank, 189 AD3d 546 [1st Dept 2020];
Brown v Wyckoff Hgts. Med. Ctr., 28 AD3d 412, 413 [2d Dept 2006] [“Contrary to the
conclusion of the Supreme Court, construing the third-party complaint liberally and according
Wyckoff the benefit of every possible inference, it fails to state a valid cause of action
independent of the previously-dismissed claims for contribution and indemnification”] [internal
quotation marks and citations omitted]). Kunstlinger’s arguments against the application of the
law of the case doctrine here are unavailing.
Accordingly, it is hereby
ORDERED that the motions to dismiss the third-party complaint by third-party
defendants Nationwide Court Services Inc. (Mot. Seq. No. 002) and Nuchem Aber (Mot. Seq.
No. 003) are granted, and the third-party complaint is dismissed as against those two third-party
defendants; and it is further
ORDERED that the third-party action is severed and continued as to third-party
defendants Alexander Aber and NB 1168 Realty, LLC; and it is further
ORDERED that the parties shall appear for a status conference on September 25, 2024 at
2:15 PM in Room 1166, 111 Centre Street, New York, New York.
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This constitutes the decision and order of the court.
ENTER:
9/4/2024 $SIG$
DATE LOUIS L. NOCK, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
APPLICATION:
X GRANTED
SETTLE ORDER
DENIED GRANTED IN PART
SUBMIT ORDER
□ OTHER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT
□ REFERENCE
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