State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 16, 2015 519093 

________________________________

ANGELO RUOTOLO,

Appellant,

v MEMORANDUM AND ORDER

FANNIE MAE et al.,

Respondents.

________________________________

Calendar Date: February 19, 2015

Before: Peters, P.J., McCarthy, Rose and Clark, JJ.

__________

Angelo Ruotolo, Cornwall, appellant pro se.

Sweeney Gallo Reich & Bolz, LLP, Rego Park (Rashel M.

Mehlman of counsel), for Fannie Mae, respondent.

Catania, Mahon, Milligram & Rider, PLLC, Newburgh (Ari I.

Bauer of counsel), for Patty Conti and others, respondents.

__________

Clark, J.

Appeal from an order of the Supreme Court (Mott, J.),

entered March 12, 2014 in Ulster County, which granted

defendants' motions to dismiss the complaint.

Plaintiff commenced the instant action pro se in November

2013 alleging that defendants Patty Conti, Patty Conti Realty,

Margaret Stewart and Marilyn VanAken (hereinafter collectively

referred to as the realty defendants) had breached a fiduciary

duty to him and engaged in deceptive business practices and false

advertising (see General Business Law §§ 349, 350), and that

defendant Fannie Mae had also engaged in deceptive business

practices and false advertising. These allegations – which stem
-2- 519093 

from plaintiff's unsuccessful attempt to purchase a foreclosed

property in the Town of New Paltz, Ulster County – had formed

part of a federal action that was initiated by plaintiff in early

2012 and dismissed in March 2013 without prejudice to plaintiff's

right to pursue his state law causes of action in state court

(see Ruotolo v Fannie Mae, 933 F Supp 2d 512 [SD NY 2013], appeal

dismissed 2013 US App LEXIS 16911 [2d Cir, June 5, 2013, No.

13-1307]). After the instant complaint was filed and served,

both the realty defendants and Fannie Mae moved for dismissal of

the complaint pursuant to CPLR 3211 (a) (5) and (7). Supreme

Court granted the motions and dismissed the complaint, and

plaintiff now appeals arguing that the complaint must be

reinstated because the decision to grant defendants' motions to

dismiss was based on a ruling that did not fully consider the

documents he submitted.

Preliminarily, we note that defendants' pre-answer motions

to dismiss were both timely served and, therefore, properly

entertained by Supreme Court. Next, we do not agree that Supreme

Court failed to consider papers timely filed in opposition to

Fannie Mae's motion. Rather, based upon the content of Supreme

Court's well-reasoned decision, we conclude that these papers

were, in fact, considered – as they should have been – and that

the lack of specific reference thereto at the end of the decision

was likely a typographical oversight. Contrary to plaintiff's

argument on appeal, the record demonstrates that Supreme Court

applied the appropriate legal standards in determining this

motion to dismiss (see 511 W. 232nd Owners Corp. v Jennifer

Realty Co., 98 NY2d 144, 151-152 [2002]; Sokoloff v Harriman

Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Leon v Martinez, 84

NY2d 83, 87-88 [1994]; Gizara v New York Times Co., 80 AD3d 1026,

1030 [2011]) and afforded plaintiff every possible inference

while liberally construing the allegations within the complaint.

 Finally, plaintiff has abandoned any issues related to the

merits of the dismissal of his complaint, as his brief is silent

on the issues of statutes of limitations and the elements

required to successfully assert a cause of action for fraud (see

Lindquist v County of Schoharie, 126 AD3d 1096, ___, 2015 NY Slip
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Op 01852, *1 n 1 [2015]).1 In any event, were we to address the

merits, we would nonetheless stand by Supreme Court's

determinations that plaintiff's causes of action fell outside the

applicable statutes of limitation (see CPLR 214 [2]; Corsello v

Verizon N.Y., Inc., 18 NY3d 777, 789-790 [2012]) and that

plaintiff had failed to state a cause of action for fraud against

Fannie Mae and the realty defendants (see Eurycleia Partners, LP

v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]; McColgan v

Brewer, 112 AD3d 1191, 1193 [2013], lv denied 24 NY3d 911 [2014];

see also CPLR 3016 [b]). 

Peters, P.J., McCarthy and Rose, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

1 While the realty defendants filed a brief with respect to

the subject appeal, they correctly noted that the only issue

before this Court is whether Supreme Court erred in not

considering certain documents submitted in opposition to Fannie

Mae's pre-answer motion to dismiss. On this basis, the realty

defendants took no position with respect to this issue but argued

that plaintiff's general request to reinstate the complaint

should be denied.