CPLR R. 3016 Particularity in specific actions
CPLR § 901 Prerequisites to a class action
Dobroshi v Bank of Am., N.A., 2009 NY Slip Op 06382 (App. Div., 1st, 2009)
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Contrary to defendant's claim, the second cause of action pleads fraud with sufficient particularity to satisfy CPLR 3016(b) (see Lanzi v Brooks, 43 NY2d 778, 780 [1977]). It informs defendant that plaintiff complains of the significant increase in settlement costs between the Good Faith Estimate of Settlement Services (GFE) and the HUD-1 statement, and of the fact that she was informed about this increase only one day before the closing.
Plaintiff's allegation that defendant deliberately underestimated settlement costs to induce her to obtain a loan from it, rather than from a competing lender states a claim for fraud (see Wright v Selle, 27 AD3d 1065, 1067-1068 [2006]). The GFE was not a mere statement of future intent (see Watts v Jackson Hewitt Tax Serv., Inc., 579 F Supp 2d 334, 352 [ED NY 2008]), and the issue of material misrepresentation is not subject to summary disposition (see e.g. Brunetti v Musallam, 11 AD3d 280, 281 [2004]).
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The motion court should have stricken the class action allegations. First, individual issues will predominate because all claims under General Business Law § 349 will require [*3]analysis of whether the ultimate closing costs were so unreasonable as to amount to a deceptive practice (cf. Weil v Long Island Savings Bank, FSB, 200 FRD 164, 174 [ED NY 2001] [distinguishing a case where each plaintiff would have to provide evidence of the services performed compared to a case where the plaintiffs claim that the alleged scheme was illegal per se]). Moreover, plaintiff contends that defendant's bad faith in making estimates is actionable. However, to determine if defendant acted in bad faith, it will be necessary to individually examine each of the tens of thousands of transactions at issue. Finally, plaintiff's proposed class would number in the thousands and would have individually tailored written disclosures, different types and amounts of fees and different reasons for the increase in closing costs. These circumstances negate the possibility that common questions would predominate (see Rose v SLM Fin. Corp., 254 FRD 269, 272-73 [WD NC 2008]).
