recognizing that N.Y. Real Property Law § 274-a creates a private right of action, because, among other reasons, that provision “is not a banking law within the Superintendent’s jurisdiction”
How later courts described this case
- recognizing that N.Y. Real Property Law § 274-a creates a private right of action, because, among other reasons, that provision “is not a banking law within the Superintendent’s jurisdiction”
- holding that § 274-a prohibits imposition of fees for payoff letters; plaintiff alleged cause of action regarding imposition of Facsimile Fee for payoff statement
- notwithstanding disclosure, allegations of a bank’s imposition of illegal and/or unwarranted fees stated a valid claim under § 349
- “Allegations of a bank’s unilateral imposition of illegal and/or unwarranted fees upon its customers state a valid claim [under § 349].”
Written by the judges who cited it.
The opinion
H. Miller, J.,
dissents and votes to affirm the order appealed from, with the following opinion: In preparation for selling her condominium, the plaintiff, Elise Negrin, telephoned her mortgage company, the defendant, Norwest Mortgage, Inc., on August 5, 1997, and requested that the payoff statement be sent by facsimile. Norwest complied, sending the statement the next day. Included in the statement were two charges, one for $10 listed as a “Fax Fee” and one for $13.50 that was listed as “Recording Fees.” The plaintiff did not complain of these charges and used the documents to complete the selling of the property at the closing which occurred on September 10, 1997, approximately 35 days later. About two weeks after the closing, the plaintiff commenced the instant action, stating that the imposition of the fees was in violation of General Business Law § 349 and Real Property Law § 274-a. The defendant thereafter moved to dismiss the complaint on the ground that the plaintiff failed to state a cause of action. The Supreme Court granted the defendant’s motion and the instant appeal ensued. I would affirm.
The court properly granted the defendant’s motion for summary judgment. The protections granted under Real Property Law § 274-a are triggered by a bona fide written request for the mortgage documents, a condition precedent that is simply not present in the case before us (see, Matter of Horseheads Commercial Dev. Partners v Horseheads Indus. Realty Assocs., 227 AD2d 764 ). In addition, the fees were disclosed to the plaintiff on the statement that was sent well before the closing date, making the claim of coercion meritless, and the claim of *52 deceptive practice unsupportable (see generally, Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20 ).
Joy and Feuerstein, JJ., concur with S. Miller, J. P.; H. Miller, J., dissents in a separate opinion.
Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.