Preview
FILED: NEW YORK COUNTY CLERK 02/28/2013 INDEX NO. 159300/2012
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/28/2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
CHRISTINA THOMPSON an infant by her mother and
natural guardian, MONIQUE PALMER, Index No. 159300/12
Plaintiff,
AFFIRMATION OF
V.
MICHAEL A. VVEISS IN
COUNTRYWIDE GP, INC., COUNTRYWIDE HOME SUPPORT OF MOTION TO
LOANS, INC., COUNTRYWIDE HOME LOANS DISMISS
SERVICING LP, MORGAN STANLEY ABS
CAPITAL I, INC., WMC MORTGAGE CORP.,
Defendants.
MICHAEL A. WEISS, an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirms the following statements to be true under the penalties of
perjury:
I. I am an associate of the firm of Day Pitney LLP, counsel for Defendant Morgan
Stanley ABS Capital I Inc. (sued herein as "Morgan Stanley ABS Capital I, Inc.") ("Morgan
Stanley") in this action, and am familiar with the matters set forth herein.
2. I submit this affirmation in support of Morgan Stanley's Motion pursuant to
CPLR Rule 3211(a)(7) seeking an Order dismissing Plaintiff's Complaint, filed December 28,
2012 (the "Complaint" or "Compl."). A true and correct copy of the Complaint is attached
hereto as Exhibit A
I. Procedural History And Factual Background
3 Plaintiff alleges that, "commencing approximately December 23, 2006 through
approximately March 2008," she suffered "exposure to, inhalation of, and/or ingestion of lead
113462737 3
based paint" as a resident of 213 Valentine Lane, Yonkers, NY (the "Property"). (Compl. 12-3,
11.)
4. Plaintiff alleges that Morgan Stanley was the "depositor of the mortgage on the
premises" and, as such, held "a collateral interest in the property" and "entered into a servicing
contract" with servicers of the subject mortgage. (Compl. 41r.10-12.)
5. Plaintiff alleges that she raised claims against other defendants based on the same
alleged lead paint exposure on the Property in a complaint filed on November 26, 2007 entitled
Bartley v UHAB Housing Development Fund Corp., et a!, bearing Index Number 115725/07,
which action did not name Morgan Stanley as a defendant. (Compl. II 3.)
6. Plaintiff filed her Complaint in this action on December 28, 2012.
Argument.
A. Legal Standards.
7. When evaluating a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to
state a claim, "[t]he court must determine whether the factual allegations taken from the four
corners of the complaint manifest any cognizable cause of action." Klepetko v. Reisman, 839
N Y.S 2d 101, 102 (2d Dep't 2007) (affirming dismissal of claim).
8 In doing so, the Court is "required to accord plaintiffs the benefit of all favorable
inferences which may be drawn from their pleading, without expressing [an] opinion as to
whether they can ultimately establish the truth of their allegations before the trier of fact."
Campaign for Fiscal Equity, Inc v. State, 655 N.E.2d 661, 667 (N.Y 1995).
9. However, assumptions in favor of a plaintiff's allegations "must fail where there
are conclusory allegations lacking factual support." Elsky v. KM Ins. Brokers, 527 N.Y.S 2d
446, 446-47 (2d Dep't 1988); see also Parsippany Constr Co. v Clark Patterson Assocs.. P. C.,
-2
8462737 3
839 N.Y.S.2d 179, 180 (2d Dep't 2007) ("[B]are legal conclusions and factual claims which are
flatly contradicted by the evidence are not presumed to be true on a motion to dismiss for failure
to state a cause of action.") (internal quotation marks and citation omitted); McNear), v. Niagara
Mohawk Power Corp., 728 N.Y.S.2d 840, 843 (3d Dep't 2001) ("[A] court need not accept as
true legal conclusions or factual allegations that are either inherently incredible or flatly
contradicted by documentary evidence.") (internal quotation marks and citation omitted).
B. Plaintiff's Claim Against Morgan Stanley Fails Because It Is Time-Barred.
10. CPLR 214-c(2) provides that "an action to recover damages for personal injury ...
caused by the latent effects of exposure to any substance or combination of substances, in any
form, upon or within the body . . must be commenced" within three years of "the date of
discovery of the injury by the plaintiff or ... the date when through the exercise of reasonable
diligence such injury should have been discovered by the plaintiff, whichever is earlier."
11. In this case, Plaintiff alleges that she filed a complaint against other defendants
relating to the very same injuries suffered as a result of the subject lead paint exposure that are
alleged in this Complaint on November 26, 2007. (Compl. lj 3.) Accordingly, it is clear that
Plaintiff had discovered her alleged injury from lead paint exposure no later than November 26,
2007.
12. Because the Complaint against Morgan Stanley was filed on December 28, 2012
- more than five years after Plaintiff claims she was aware of her injury — Plaintiffs claim
against Morgan Stanley is time-barred, and should be dismissed.
C. Plaintiff's Claim Against Morgan Stanley Fails Because A Depositor Of A
Mortgage Is Not Liable For Conditions On Such Property.
13. In her Complaint, Plaintiff alleges that Morgan Stanley was connected to the
Property because it was the "depositor of the mortgage on the premises" and, as such, held "a
-3-
84627312 1
collateral interest in the property" and "entered into a servicing contract" with servicers of the
subject mortgage. (Compl. ¶11 10-12.) That is the sole basis for including Morgan Stanley as a
defendant in this action.
14. As courts addressing toxic exposure claims against mortgage holders and
servicers have made clear that entities such as a "depositor of [a] mortgage" cannot be held liable
for dangerous conditions on a mortgaged property. See, e.g., Pollard v Credit Suisse First
Boston Mortg Capital, LLC, 887 N.Y.S.2d 626, 628 (2d Dep't 2009) (dismissing lead paint
exposure claim by occupants of mortgaged property where "[n]either the defendant Credit Suisse
First Boston Mortgage Capital, LLC, a mortgage holder, nor the defendant Fairbanks Capital
Corp., now known as Select Portfolio Servicing, Inc. (hereinafter Fairbanks), a servicer of the
mortgage on the property, owned or controlled the premises at issue, or assumed any duty to the
plaintiffs, which might serve as a predicate for liability") (citation omitted); see also Gibbs v.
Port Auth. of N.Y , 794 N.Y.S.2d 320, 322 (1st Dep't 2005) ("Liability for a dangerous condition
on property may only be predicated upon occupancy, ownership, control or special use of such
premises ....") (citation omitted).
15. Because Plaintiff cannot demonstrate Morgan Stanley's "occupancy, ownership,
control or special use" of the Property, her claim against Morgan Stanley should be dismissed.
D. Plaintiff's Claim Against Morgan Stanley Fails Because She Cannot
Demonstrate That Morgan Stanley Had Any Notice Of The Alleged
Dangerous Condition On The Property.
16. Plaintiff's claim against Morgan Stanley fails for the additional reason that she
cannot demonstrate that Morgan Stanley had actual or constructive notice of the alleged lead-
paint condition that caused her injury. See, e.g , Pollard, 887 N.Y.S.2d at 628 (dismissing lead
paint exposure claim by occupants of mortgaged premises where "neither Credit Suisse First
-4-
4,27372 i
Boston Mortgage Capital, LLC, Fairbanks, nor the defendant TCIF, LLC, which was a
mortgagor that became an owner through a foreclosure proceeding, had actual or constructive
notice of the lead-paint condition alleged to have caused injury ...") (citation omitted); Chapman
v. Silber, 760 N.E.2d 329, 336 (N.Y. 2001) (dismissing toxic paint exposure claim where "there
is no record evidence that the landlord was on actual or constructive notice of a chipped or
peeling paint condition inside the apartment").
17. In her Complaint, Plaintiff includes boilerplate allegations (1) that Morgan
Stanley "had actual and/or constructive notice that a child seven (7) years or less resided in an
apartment within the subject property", (2) that Morgan Stanley "maintained the property ... in a
negligent manner", and (3) that Morgan Stanley "was on actual or constructive notice of the
conditions which gave rise to the infant plaintiff's injuries and failed to ... correct the subject
conditions ...." (Compl. lir 39-41.)
18. However, Plaintiff provides absolutely no support for these allegations. Indeed,
she provides absolutely no indication as to how Morgan Stanley, as the "depositor of the
mortgage," (1) had any knowledge of the ages of the inhabitants of the Property, (2) had any
responsibility for or involvement with the maintenance of the Property, and/or (3) had any
knowledge of the alleged lead paint conditions at the Property. (Compl. IN 13, 39-41.)
19. Plaintiffs allegations are therefore quintessential "conclusory allegations lacking
factual support" that must fail on a motion to dismiss. Elsky, 527 N.Y.S.2d at 446-47;
Parsippany Constr. Co. 839 N.Y.S.2d at 180; McNeary, 728 N.Y.S.2d at 843.
20. Because Plaintiff can offer no more than conclusory allegations as to Morgan
Stanley's knowledge of the alleged hazardous condition, Plaintiffs claim against Morgan
Stanley should be dismissed.
-5-
8462 /372 3
III. Conclusion.
21. For the foregoing reasons, this Court should dismiss the Complaint pursuant to
CPLR Rule 3211(a)(7), with prejudice, award Morgan Stanley its costs and attorney's fees, and
award Morgan Stanley such other relief the court may deem proper
22. Pursuant to 22 NYCRR § 130-1.1A(b), your affirmant hereby certifies that to the
best of your affinnant's knowledge, information and belief, formed after an inquiry reasonable
under the circumstances, the papers presented herein and the contentions contained therein are
not frivolous as defined in 22 NYCRR § 130-1.1(c).
WHEREFORE, it is respectfully requested that this Court issue an Order pursuant to
CPLR § 3211(a)(7) dismissing Plaintiffs Complaint with prejudice, for costs and attorney's fees,
and for such other relief the court may deem proper.
Dated: New York, New York
February 28, 2013
DAY PITN - Arop
By: 1111 }11J11111h
Michael A. eiss
7 Times Square
New York, New York 10036
Tel: (212) 297-5800
Attorneys for Defendant Morgan Stanley ABS
Capital I Inc (sued herein as "Morgan Stanley ABS
Capital I, Inc ")
-6-
S462737.. 3
Preview
FILED: NEW YORK COUNTY CLERK 02/28/2013 INDEX NO. 159300/2012 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 02/28/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CHRISTINA THOMPSON an infant by her mother and natural guardian, MONIQUE PALMER, Index No. 159300/12 Plaintiff, AFFIRMATION OF V. MICHAEL A. VVEISS IN COUNTRYWIDE GP, INC., COUNTRYWIDE HOME SUPPORT OF MOTION TO LOANS, INC., COUNTRYWIDE HOME LOANS DISMISS SERVICING LP, MORGAN STANLEY ABS CAPITAL I, INC., WMC MORTGAGE CORP., Defendants. MICHAEL A. WEISS, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following statements to be true under the penalties of perjury: I. I am an associate of the firm of Day Pitney LLP, counsel for Defendant Morgan Stanley ABS Capital I Inc. (sued herein as "Morgan Stanley ABS Capital I, Inc.") ("Morgan Stanley") in this action, and am familiar with the matters set forth herein. 2. I submit this affirmation in support of Morgan Stanley's Motion pursuant to CPLR Rule 3211(a)(7) seeking an Order dismissing Plaintiff's Complaint, filed December 28, 2012 (the "Complaint" or "Compl."). A true and correct copy of the Complaint is attached hereto as Exhibit A I. Procedural History And Factual Background 3 Plaintiff alleges that, "commencing approximately December 23, 2006 through approximately March 2008," she suffered "exposure to, inhalation of, and/or ingestion of lead 113462737 3 based paint" as a resident of 213 Valentine Lane, Yonkers, NY (the "Property"). (Compl. 12-3, 11.) 4. Plaintiff alleges that Morgan Stanley was the "depositor of the mortgage on the premises" and, as such, held "a collateral interest in the property" and "entered into a servicing contract" with servicers of the subject mortgage. (Compl. 41r.10-12.) 5. Plaintiff alleges that she raised claims against other defendants based on the same alleged lead paint exposure on the Property in a complaint filed on November 26, 2007 entitled Bartley v UHAB Housing Development Fund Corp., et a!, bearing Index Number 115725/07, which action did not name Morgan Stanley as a defendant. (Compl. II 3.) 6. Plaintiff filed her Complaint in this action on December 28, 2012. Argument. A. Legal Standards. 7. When evaluating a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a claim, "[t]he court must determine whether the factual allegations taken from the four corners of the complaint manifest any cognizable cause of action." Klepetko v. Reisman, 839 N Y.S 2d 101, 102 (2d Dep't 2007) (affirming dismissal of claim). 8 In doing so, the Court is "required to accord plaintiffs the benefit of all favorable inferences which may be drawn from their pleading, without expressing [an] opinion as to whether they can ultimately establish the truth of their allegations before the trier of fact." Campaign for Fiscal Equity, Inc v. State, 655 N.E.2d 661, 667 (N.Y 1995). 9. However, assumptions in favor of a plaintiff's allegations "must fail where there are conclusory allegations lacking factual support." Elsky v. KM Ins. Brokers, 527 N.Y.S 2d 446, 446-47 (2d Dep't 1988); see also Parsippany Constr Co. v Clark Patterson Assocs.. P. C., -2 8462737 3 839 N.Y.S.2d 179, 180 (2d Dep't 2007) ("[B]are legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on a motion to dismiss for failure to state a cause of action.") (internal quotation marks and citation omitted); McNear), v. Niagara Mohawk Power Corp., 728 N.Y.S.2d 840, 843 (3d Dep't 2001) ("[A] court need not accept as true legal conclusions or factual allegations that are either inherently incredible or flatly contradicted by documentary evidence.") (internal quotation marks and citation omitted). B. Plaintiff's Claim Against Morgan Stanley Fails Because It Is Time-Barred. 10. CPLR 214-c(2) provides that "an action to recover damages for personal injury ... caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body . . must be commenced" within three years of "the date of discovery of the injury by the plaintiff or ... the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier." 11. In this case, Plaintiff alleges that she filed a complaint against other defendants relating to the very same injuries suffered as a result of the subject lead paint exposure that are alleged in this Complaint on November 26, 2007. (Compl. lj 3.) Accordingly, it is clear that Plaintiff had discovered her alleged injury from lead paint exposure no later than November 26, 2007. 12. Because the Complaint against Morgan Stanley was filed on December 28, 2012 - more than five years after Plaintiff claims she was aware of her injury — Plaintiffs claim against Morgan Stanley is time-barred, and should be dismissed. C. Plaintiff's Claim Against Morgan Stanley Fails Because A Depositor Of A Mortgage Is Not Liable For Conditions On Such Property. 13. In her Complaint, Plaintiff alleges that Morgan Stanley was connected to the Property because it was the "depositor of the mortgage on the premises" and, as such, held "a -3- 84627312 1 collateral interest in the property" and "entered into a servicing contract" with servicers of the subject mortgage. (Compl. ¶11 10-12.) That is the sole basis for including Morgan Stanley as a defendant in this action. 14. As courts addressing toxic exposure claims against mortgage holders and servicers have made clear that entities such as a "depositor of [a] mortgage" cannot be held liable for dangerous conditions on a mortgaged property. See, e.g., Pollard v Credit Suisse First Boston Mortg Capital, LLC, 887 N.Y.S.2d 626, 628 (2d Dep't 2009) (dismissing lead paint exposure claim by occupants of mortgaged property where "[n]either the defendant Credit Suisse First Boston Mortgage Capital, LLC, a mortgage holder, nor the defendant Fairbanks Capital Corp., now known as Select Portfolio Servicing, Inc. (hereinafter Fairbanks), a servicer of the mortgage on the property, owned or controlled the premises at issue, or assumed any duty to the plaintiffs, which might serve as a predicate for liability") (citation omitted); see also Gibbs v. Port Auth. of N.Y , 794 N.Y.S.2d 320, 322 (1st Dep't 2005) ("Liability for a dangerous condition on property may only be predicated upon occupancy, ownership, control or special use of such premises ....") (citation omitted). 15. Because Plaintiff cannot demonstrate Morgan Stanley's "occupancy, ownership, control or special use" of the Property, her claim against Morgan Stanley should be dismissed. D. Plaintiff's Claim Against Morgan Stanley Fails Because She Cannot Demonstrate That Morgan Stanley Had Any Notice Of The Alleged Dangerous Condition On The Property. 16. Plaintiff's claim against Morgan Stanley fails for the additional reason that she cannot demonstrate that Morgan Stanley had actual or constructive notice of the alleged lead- paint condition that caused her injury. See, e.g , Pollard, 887 N.Y.S.2d at 628 (dismissing lead paint exposure claim by occupants of mortgaged premises where "neither Credit Suisse First -4- 4,27372 i Boston Mortgage Capital, LLC, Fairbanks, nor the defendant TCIF, LLC, which was a mortgagor that became an owner through a foreclosure proceeding, had actual or constructive notice of the lead-paint condition alleged to have caused injury ...") (citation omitted); Chapman v. Silber, 760 N.E.2d 329, 336 (N.Y. 2001) (dismissing toxic paint exposure claim where "there is no record evidence that the landlord was on actual or constructive notice of a chipped or peeling paint condition inside the apartment"). 17. In her Complaint, Plaintiff includes boilerplate allegations (1) that Morgan Stanley "had actual and/or constructive notice that a child seven (7) years or less resided in an apartment within the subject property", (2) that Morgan Stanley "maintained the property ... in a negligent manner", and (3) that Morgan Stanley "was on actual or constructive notice of the conditions which gave rise to the infant plaintiff's injuries and failed to ... correct the subject conditions ...." (Compl. lir 39-41.) 18. However, Plaintiff provides absolutely no support for these allegations. Indeed, she provides absolutely no indication as to how Morgan Stanley, as the "depositor of the mortgage," (1) had any knowledge of the ages of the inhabitants of the Property, (2) had any responsibility for or involvement with the maintenance of the Property, and/or (3) had any knowledge of the alleged lead paint conditions at the Property. (Compl. IN 13, 39-41.) 19. Plaintiffs allegations are therefore quintessential "conclusory allegations lacking factual support" that must fail on a motion to dismiss. Elsky, 527 N.Y.S.2d at 446-47; Parsippany Constr. Co. 839 N.Y.S.2d at 180; McNeary, 728 N.Y.S.2d at 843. 20. Because Plaintiff can offer no more than conclusory allegations as to Morgan Stanley's knowledge of the alleged hazardous condition, Plaintiffs claim against Morgan Stanley should be dismissed. -5- 8462 /372 3 III. Conclusion. 21. For the foregoing reasons, this Court should dismiss the Complaint pursuant to CPLR Rule 3211(a)(7), with prejudice, award Morgan Stanley its costs and attorney's fees, and award Morgan Stanley such other relief the court may deem proper 22. Pursuant to 22 NYCRR § 130-1.1A(b), your affirmant hereby certifies that to the best of your affinnant's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the papers presented herein and the contentions contained therein are not frivolous as defined in 22 NYCRR § 130-1.1(c). WHEREFORE, it is respectfully requested that this Court issue an Order pursuant to CPLR § 3211(a)(7) dismissing Plaintiffs Complaint with prejudice, for costs and attorney's fees, and for such other relief the court may deem proper. Dated: New York, New York February 28, 2013 DAY PITN - Arop By: 1111 }11J11111h Michael A. eiss 7 Times Square New York, New York 10036 Tel: (212) 297-5800 Attorneys for Defendant Morgan Stanley ABS Capital I Inc (sued herein as "Morgan Stanley ABS Capital I, Inc ") -6- S462737.. 3