| Scaturro v Sutera |
| 2008 NY Slip Op 10093 [57 AD3d 1283] |
| December 24, 2008 |
| Appellate Division, Third Department |
| Anna Scaturro, Appellant, v Julianna R. Sutera et al.,Respondents. |
—[*1] Ostrer Rosenwasser, L.L.P., Chester (Benjamin Ostrer of counsel), for respondents.
Rose, J. Appeal from an order of the Supreme Court (Work, J.), entered April 2, 2007 in UlsterCounty, which granted defendants' motion for summary judgment dismissing the complaint.
Plaintiff and defendant Julianna R. Sutera (hereinafter defendant) are sisters who received a parcelof real property from their mother as tenants in common. After defendant refused plaintiff's proposalthat they sell the property outside the family, plaintiff agreed to sell her share of the property todefendant for one half of its assessed value. After conveying her interest, however, plaintiff commencedthis action asserting claims of fraud, undue influence and breach of fiduciary duty based upon herallegation that defendant had misrepresented the market value of the subject property. Supreme Courtgranted defendants' motion for summary judgment dismissing the complaint, prompting this appeal.
In order to state a fraud cause of action, "a plaintiff must allege misrepresentation or concealment ofa material fact, falsity, scienter by the wrongdoer, justifiable reliance on the deception, and resultinginjury" (Zanett Lombardier, Ltd. vMaslow, 29 AD3d 495, 495 [2006]; see Ross v Louise Wise Servs., Inc., 8 NY3d 478, 488 [2007]). Weagree with Supreme Court that there are no facts in the record before us demonstrating that defendantmisrepresented the value of the land in question, as she indicated its assessed value only and plaintiffdoes not dispute the accuracy of that representation. In addition, the element of justifiable reliance islacking here because the record shows that plaintiff did not rely on defendant's indication of the [*2]property's assessed value as a representation of its market value. Plaintifftestified that she believed the market value of the property was much higher than its assessed value, yetshe agreed to the transfer at the lower amount in order to "get out of" the stalemate with her sister.Accordingly, Supreme Court properly dismissed the fraud cause of action.
As for plaintiff's contention that the deed should be set aside on the ground of undue influence,there is simply no evidence that plaintiff was "deprived of a meaningful choice respecting [her] decisionto enter [into the] agreement" (Goldberg v Moskowitz, 262 AD2d 56, 57 [1999]; seeMatter of Chiurazzi, 296 AD2d 406, 407 [2002]). Finally, plaintiff's reliance on Birnbaum vBirnbaum (73 NY2d 461 [1989]) to support her claim for breach of fiduciary duty is unavailing inthe absence of any evidence of a partnership agreement between the parties here.
Mercure, J.P., Carpinello, Kane and Malone Jr., JJ., concur. Ordered that the order is affirmed,with costs.