| Kavner v Geller |
| 2008 NY Slip Op 01862 [49 AD3d 281] |
| March 4, 2008 |
| Appellate Division, First Department |
| Nora Kavner, Appellant, v Matthew Geller et al.,Respondents. |
—[*1] Blank Rome LLP, New York City (Harris N. Cogan of counsel), for Matthew Geller,respondent. Kasowitz Benson Torres & Friedman LLP, New York (Daniel P. Goldberg of counsel), forCIBC Oppenheimer Corp. and CIBC World Markets Corp., respondents.
Judgment, Supreme Court, New York County (Edward H. Lehner, J.), entered December 12,2006, dismissing the complaint pursuant to an order, same court and Justice, entered November14, 2006, which granted defendants' CPLR 3211 motion, unanimously affirmed, with costs.Appeal from aforesaid order unanimously dismissed, without costs, as subsumed in the appealfrom the judgment.
Plaintiff does not allege any affirmative misstatement of material facts with the requisiteparticularity to support a claim for fraud in the inducement of the stipulation into which sheentered with her former husband, defendant Geller (see CPLR 3016 [b]; New York City Health & Hosps. Corp. vSt. Barnabas Community Health Plan, 22 AD3d 391 [2005]; J.A.O. Acquisition Corp. v Stavitsky,18 AD3d 389, 390-391 [2005]). Nor may plaintiff assert that she reasonably relied ondefendants' silence or any misrepresentation regarding whether the CIBC defendants' job offer toGeller was contingent on plaintiff settling her dispute with him. She was an intelligentprofessional separately represented by counsel in the negotiations in this adversarial proceeding,and chose to forgo any discovery in the bankruptcy action, out of which arose the settlement ofher claims seeking to enforce the divorce judgment (see Kojovic v Goldman, 35 AD3d 65, 69-70 [2006], lv denied8 NY3d 804 [2007]; see also Cosh vCosh, 45 AD3d 798 [2007]). Moreover, even if, arguendo, Geller had a duty to speak,CIBC clearly did not, as it was merely an adversary creditor in a bankruptcy proceeding, andowed plaintiff no fiduciary duty (see National Union Fire Ins. Co. of Pittsburgh, Pa. v RedApple Group, 281 AD2d 296, 297 [2001]; 900 Unlimited v MCI Telecom. Corp.,215 AD2d 227 [1995]).
Furthermore, contrary to plaintiff's assertion, the record establishes that in Geller's motion todismiss the bankruptcy proceeding, to which plaintiff was a party, he revealed that a pendingdisputed arbitration against himself and CIBC, which he had listed as a contingent liability,would not exist following the dismissal of the bankruptcy. This put plaintiff on notice that thearbitration had been disposed of insofar as Geller was concerned, yet plaintiff neither [*2]opposed the motion nor sought any discovery as to the status of thearbitration.
The unjust enrichment cause of action was properly dismissed inasmuch as the settlementbetween Geller and plaintiff is a valid and enforceable contract which controls the rights of theparties as they relate to the instant dispute (see Clark-Fitzpatrick, Inc. v Long Is. R.R.Co., 70 NY2d 382, 388-389 [1987]). Concur—Nardelli, J.P., Williams, Sweeny andCatterson, JJ.