Jaimee L. Katz SussnerMember

• Title Insurer – Appellate Victory in Coverage Dispute – 2021

Successful appeal of coverage dispute before the New York Appellate Division, First Department. The plaintiffs initiated an action against our client, a title insurance underwriter, under a $30.9 million owner’s policy of title insurance by Summons with Notice. The IAS Court denied the title insurer’s motion to dismiss based on the plaintiffs’ failure to timely serve their Complaint, or to supply an affidavit of merit. The First Department reversed the IAS Court’s ruling and dismissed Plaintiff’s Complaint in its entirety due to its finding that the Complaint had not been timely filed, and an affidavit of merit also had not been filed, as required by the CPLR. The First Department declined to consider the merits of Plaintiff’s claims that had been rendered moot.

• Title Insurer – Appellate Victory in “Rights in Possession” Exception Case – 2021

Obtained a notable victory for a title insurer in an appeal argued before the New York Appellate Division, Second Department affirming that a title insurer was not required to defend or indemnify the plaintiff against a lawsuit for adverse possession that fell within the title insurance policy’s “rights in possession” exception. The plaintiff in the action alleged that the title insurer was obligated to defend and indemnify the plaintiff against a lawsuit for adverse possession brought by the plaintiff’s neighbor resulting from a fence that encroached several feet onto the plaintiff’s property from the neighbor’s property. The title insurer denied plaintiff’s claim based on an exception to coverage in the policy for loss or damage arising from “rights of persons or tenants in possession.” The trial court granted summary judgment to the title insurer and the plaintiff appealed. The Second Department affirmed the grant of summary judgment. This new authority is a significant development in the title insurance industry due to the limited authorities construing this policy provision.

• Real Estate Buyers – Cyber Hacking Litigation – 2015

Won dismissal of all claims against her clients, the purchasers of real estate, in a transaction where the email account maintained by the seller’s counsel’s had been hacked shortly before the closing of title in furtherance of a fraudulent scheme.

• Owner of Large NJ Commercial Property – Easement Dispute – 2015

Represented the owner of two commercial parcels of property totaling approximately eleven acres in a dispute involving the defendants’ efforts to obstruct and control the plaintiff’s use of its right-of-way easement with two forty-foot gates. Although the defendants conceded that the easement was valid to the extent that it serviced a one-acre parcel that merged into the eleven acres that our client owned, the defendants argued that they should be permitted to preserve the gates nonetheless to prevent the plaintiff from using or accessing the easement for the benefit of the remaining 10 acres. On cross-motions for summary judgment, the trial court granted partial summary judgment in favor of our client, the plaintiff, and denied the defendants’ motion for summary judgment in its entirety, concluding that the plaintiff has an absolute, unfettered right to use the easement. The trial court reserved for trial its determination of whether the defendants’ efforts to limit the plaintiff’s use of the easement were reasonable. The parties successfully settled all remaining claims shortly before trial.

• New Jersey Logistics Business – Appellate Victory in Long-Running Business Divorce Dispute – 2014

Scored a major victory on behalf of her client in an appeal argued before the Superior Court of New Jersey, Appellate Division. The victory comes after a bitter seven year litigation arising out of the parties’ complicated business and contractual relationships. At issue were claims made by our client’s partner in a logistics business that an asset sale of warehousing, trucking and certain related businesses, separately owned by our client and another party, amounted to a breach of contract and a breach of an alleged joint venture because it did not include the assets of the logistics business. After several years of contentious and complex litigation, we succeeded in obtaining summary judgment dismissing all claims against our client. The trial court’s ruling was unanimously affirmed on appeal in June 2014, ending the protracted battle.

• Title Insurance Underwriter and Agent – Summary Judgment Dismissing All Claims – 2013

Obtained summary judgment dismissing all claims against a title insurance underwriter and its agent following a coverage dispute arising out of a tax sale certificate that was not properly redeemed and discharged at the time of closing in accordance with the statute that governs redemptions after tax foreclosure proceedings have been commenced. The plaintiff in the action alleged that the title insurance underwriter and agent failed to advise its closing counsel how to comply with a statute designed to prevent “heir hunters” from preying upon parties vulnerable to foreclosure in the tumultuous period following the death of a predecessor owner, as occurred here.

• Stewart Title Guaranty Co. – New Jersey Supreme Court Victory – 2010

Representation of Stewart Title Guaranty Co. in its New Jersey Supreme Court victory limiting the scope of a title insurance company’s liability for attorney misconduct. The homebuyers’ attorney stole their escrow funds in conjunction with a real estate transaction. The New Jersey Lawyers Fund For Client Protection paid the victims for the attorney’s theft, and then sued Stewart Title for reimbursement, in keeping with NJLF’s long-held belief that a title insurer’s liability should blanket all aspects of the closing process. The attorney here, however, had stolen the money before he contacted Stewart Title’s agent to request a title insurance commitment and policy on behalf of the homebuyers. The trial court dismissed NJLF’s lawsuit, but the Appellate Division reversed, ruling that in order for Stewart Title to avoid liability, it would have had to provide the homebuyers with direct notice informing them that their title insurance policy did not cover attorney theft. The Supreme Court unanimously reversed, ruling that the lack of notice was irrelevant, since the attorney was not acting as an agent of the title company at the time that he committed his crime.

• Title Insurance Agency – Frivolous Claim Defense – 2010

Representation of a title insurance agency in a suit brought by a property seller. We won summary judgment and a dismissal of all claims. The court also ruled that the plaintiff had committed fraud in connection with the transaction, and imposed sanctions against him and his counsel, including attorney’s fees, for frivolous litigation.

• Appellate Victory for Special Servicer – 2009

Representation of a special servicer in a suit against a borrower and three individual guarantors after the borrower procured subordinate financing in violation of a non-recourse carve-out provision. Our client was the special servicer for the lender. In a case of first impression, the New Jersey Appellate Division enforced the non-recourse carve-out provision and imputed personal liability to the borrower and guarantors. It concluded that the disputed clause fixes liability rather than damages and, therefore, does not constitute an unenforceable penalty as the borrower had argued. The Appellate Division also held that the borrower’s efforts to “cure” the triggering event did not vitiate personal liability. As a result, the lender properly obtained a $5 million+ deficiency judgment against the borrower and guarantors.

• Title Insurer – Victory in Litigation Against the U.S. Government – 2008

Representation of an insured real property owner in defending against a large and complicated lawsuit by the U.S. Government over the purchase of a piece of real estate from the government. The case dragged on for three years before the insurer brought us in, and we won it on a motion for summary judgment.

• Title Insurer – Frivolous Claim Defense – 2007

Defended a title insurer in an action by a property owner seeking title insurance coverage. The court found the owner’s damages to be attributable to its own actions, and impressed sanctions against the owner and its counsel, which included attorneys’ fees, for prosecuting frivolous litigation.

• Title Insurer – Mortgage Fraud Litigation – 2006

Representation of an insured lender in litigating the validity and enforceability of a multi-million dollar mortgage lien that was alleged to have been forged. Overcame the fraud allegation and succeeded in enforcing the mortgage.

• Real Estate Developer – Bankruptcy Litigation – 2001

Representation of a mortgagee in successfully litigating the enforceability of a mortgage lien that transferred to the anticipated proceeds of a sale in a contested bankruptcy in which the debtor sought to enforce a settlement purporting to require a contrary outcome. (In re: Miano, 261 B.R. 391, 2001 Bankr. LEXIS 694 (Bankr. D.N.J. 2001).)

• Lender – Fraudulent Transfer Litigation – 2001

Representation of a lender in successfully prosecuting a fraudulent transfer action in which the debtor transferred and concealed assets in anticipation of the entry of a judgment against him. The case was litigated before the New Jersey Supreme Court, and is recognized to have established the legal standard to be applied in construing the limitations period governing fraudulent transfer claims. SASCO 1997 NI, LLC v. Zudkewich, 166 N.J. 579 (2001).