| Mandarin Trading Ltd. v Wildenstein |
| 2009 NY Slip Op 06221 [65 AD3d 448] |
| August 18, 2009 |
| Appellate Division, First Department |
| Mandarin Trading Ltd., Appellant, v Guy Wildenstein etal., Respondents. |
—[*1] Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered October 1,2007, which granted defendants' motion to dismiss the complaint, affirmed, without costs. Mandarin Trading seeks damages for losses allegedly sustained as a result of its relianceon an appraisal letter, dated July 28, 2000, written by defendant Guy Wildenstein, president ofWildenstein & Co., Inc., estimating the value of Paysage aux Trois Arbres, an 1892 painting byPaul Gauguin, at between $15 million and $17 million. It is undisputed that sometime in July 2000 Patrick Blum, a director of Mandarin's parentcompany Phoenix Capital Reserve Fund, was approached about purchasing art for investmentpurposes. He was also advised by Amir Cohen that the owner of Paysage aux Trois Arbres waslooking to sell it. The dissent is of the opinion that the first two causes of action for fraudulentmisrepresentation are sufficiently pleaded because Mandarin alleges that it sought an appraisalbefore purchasing the painting and that Wildenstein issued a misleading appraisal upon whichMandarin relied. However, missing from that conclusion is any basis for connecting Mandarin toWildenstein. Mandarin alleges that Cohen represented to Blum that he could arrange the sale fora success fee that would be based on Mandarin's resale of the painting at auction. Cohen agreedto get an appraisal and recommended Wildenstein, a world renowned expert on Gauguin. There is no indication who first approached Blum, although it most likely was Cohen, nor isthere any allegation that Blum inquired as to who the unidentified owner was. Nor is there anyallegation or evidence as to who Amir Cohen is and no allegation that he acted for or is in anyway related to Guy Wildenstein. Likewise, there is no allegation or evidence as to who owned orcontrolled Calypso Fine Art Ltd., which actually delivered the painting to Mandarin in return forits payment of $11.8 million, or that it was in any way related to Wildenstein. Defendantspresented documentary evidence that, on July 28, 2000, Guy Wildenstein wrote to MichelReymondin, stating that the painting was well known to him since his firm had once sold it, andthat he thought that in the current market the painting was worth between $15 million and $17million. However, there is no allegation in the complaint or any evidence in the record as to whoReymondin is; who, if anybody he represented; whether he is related in any way to Wildenstein;and whether Wildenstein knew or had reason to know that his opinion as to the value of thepainting was being solicited for purposes of its sale to anyone, let alone Mandarin, or that [*2]Mandarin, or any other person, would rely upon his opinion indeciding to buy the painting. For all we know, an opinion as to the painting's value may havebeen solicited for purposes of insurance coverage or for tax reasons. The dissent states that Mandarin alleges that the appraisal was prepared at its request. Again,however, Mandarin fails to allege or otherwise establish to whom that request was made. If itwas made to Cohen, which is most likely since he offered to get one, did Cohen then askReymondin to ask Wildenstein? If so, did Cohen tell Reymondin to tell Wildenstein that he wassoliciting his opinion for someone, who wished to buy the painting, even if the prospective buyerwished to remain anonymous? On August 10, 2000, Christie's International agreed to present the painting at its November8, 2000 auction, for a price estimated at between $12 million and $16 million and a reserve price,i.e., the price below which the painting would not be sold, set at $12 million. Mandarin thenpurchased the painting, from a nonparty entity, for $11.3 million. However, Christie's was unableto sell the painting, because the high bid was only $9 million. The Wildenstein appraisal letter, which did not indicate the purpose for which the appraisalwas given, was addressed to a nonparty whose relationship with Mandarin is not identified in thecomplaint and who is alleged on appeal to be an intermediary. The complaint alleges thatdefendants provided an inflated appraisal figure because they had an ownership interest in thepainting; that Mandarin was unaware of defendants' interest in the painting; that defendantsreceived amounts in excess of the painting's true market value; and that Mandarin has beenunable to sell the painting for an amount even approaching the Wildenstein appraisal figure. The complaint fails to state a cause of action for fraudulent misrepresentation, because theappraisal consists of opinion, which is not actionable (compare Jacobs v Lewis, 261AD2d 127 [1999]). The appraisal contains no facts that are alleged to have been misrepresented(see Rodin Props.-Shore Mall v Ullman, 264 AD2d 367 [1999]; Kimmell vSchaefer, 224 AD2d 217 [1996], affd 89 NY2d 257 [1996]). The parties had norelationship with each other, and there was no indication of the purpose of the appraisal, whichwas not alleged to have been inconsistent with other information provided by defendants(compare Cristallina v Christie, Manson & Woods Intl., 117 AD2d 284, 294-295[1986]). Moreover, since the complaint does not allege that defendants were even aware ofMandarin's existence, it fails to state that the appraisal was made to induce Mandarin's reliance, anecessary element of fraudulent misrepresentation (see Lama Holding Co. v SmithBarney, 88 NY2d 413, 421-422 [1996]) and fraudulent concealment (see Swersky vDreyer & Traub, 219 AD2d 321, 326 [1996]). The complaint also fails to state a cause of action for negligent misrepresentation, because,without any knowledge on defendants' part of Mandarin's existence or the purpose for which theappraisal was to be used, there could be neither privity of contract between the parties nor arelationship so close as to approach privity (see Parrott v Coopers & Lybrand, 95 NY2d479, 483 [2000]; Ravenna v Christie's Inc., 289 AD2d 15 [2001]). Ravenna is a case directly on point. There, at a single meeting with an old masterpaintings specialist at Christie's, the specialist gave the owner erroneous information regardingthe provenance of a painting after being shown photographs of the painting. This Courtdismissed the complaint, finding that there was no allegation that Christie's was retained or paidfor the advice and no allegation of a prior or subsequent dealings with Christie's. As here, all thatcould be gleaned from the complaint was that Christie's gave gratuitous advice based on awalk-in inquiry. Such a one-time meeting, the Court found, which did not even create a business[*3]relationship, cannot be said to have created a relationship oftrust and confidence. Although it was undisputed that the specialist was aware that plaintiffwould rely upon his advice, that fact alone was found to be insufficient to state a claim ofnegligent misrepresentation. Here, on the other hand, we have an even stronger case fordismissal. Here, there is no allegation or evidence that Wildenstein even knew of Mandarin'sexistence (by name or anonymously) or that Mandarin or any other person would rely upon hisopinion to buy the painting. The dissent attempts to distinguish this case from Ravennabecause here there is an allegation that the appraisal was made for a prospective buyer of apainting in which the appraiser had an undisclosed interest and that this Court noted inRavenna that a business relationship had not been created. It suggests that discovery willexplore the nature of Wildenstein's relationship, if any, with Mandarin; however, the plaintiff inRavenna made the same argument, which was found without merit. As this Court stated:"[t]he mere hope that discovery might provide some factual support for a cause of action isinsufficient to avoid dismissal of a patently defective cause of action" (id. at 16 [citationomitted]). Because the existence of a valid and binding contract is not alleged, the complaint fails tostate a cause of action for either breach of contract (see Mendel v Henry Phipps Plaza W., Inc., 6 NY3d 783, 786[2006]) or breach of the implied covenant of good faith and fair dealing (seeAmerican-European Art Assoc. v Trend Galleries, 227 AD2d 170 [1996]). Moreover, despite allegations that defendants failed to disclose their ownership in thepainting and intentionally inflated their appraisal of its value, causing Mandarin to be misled asto the painting's value and to pay an inflated price for it, and that defendants or entities related tothem received a large portion of the higher-than-market purchase price, the complaint fails tostate a cause of action for unjust enrichment. "The essential inquiry in any action for unjustenrichment or restitution is whether it is against equity and good conscience to permit thedefendant to retain what is sought to be recovered" (see Paramount Film Distrib. Corp. vState of New York, 30 NY2d 415, 421 [1972], cert denied 414 US 829 [1973]). Asfound by the motion court, under the facts alleged Mandarin was not entitled to rely onWildenstein's appraisal, and even if defendants received a benefit from Mandarin, it has notshown that any enrichment was unjust, especially because Mandarin could have, but did not,obtain its own appraisal from Wildenstein. As the court found, Mandarin's unjust enrichmentclaim cannot be a back door to recovery based upon reliance on the appraisal, when it was notentitled to rely upon the appraisal in the first place. Concur—Andrias, Catterson andMoskowitz, JJ. Tom, J.P. (dissenting in part). While I concur that the complaint does not state grounds forrelief at law, I conclude that a claim in equity is sufficiently stated. At issue is whether thecomplaint adequately pleads that defendants have been unjustly enriched, not whether plaintiffwill ultimately be able to prove it. At this preliminary stage of the proceedings, on anundeveloped record, it is premature to adopt Supreme Court's conclusion that "plaintiff has notdemonstrated that equity and good conscience entitle plaintiff to the relief sought." The complaint seeks damages alleged to have been sustained as a result of plaintiff'spurchase of Paysage aux Trois Arbres, a painting by Paul Gauguin, in reliance on an appraisal[*4]obtained from defendant Guy Wildenstein, acting on behalfof defendant Wildenstein & Co., Inc. Included are sums expended to facilitate the purchase ofthe painting from entities in which defendants had an interest. As this Court has observed, undera theory of unjust enrichment, "recovery is available not only where there has been an actualbenefit to the other party but, in the instance of a wrongdoing defendant, to restore the plaintiff'sformer status, including compensation for expenditures made in reliance upon defendant'srepresentations" (Martin H. Bauman Assoc. v H & M Intl. Transp., 171 AD2d 479, 484[1991], citing Farash v Sykes Datatronics, 59 NY2d 500, 505 [1983]). Thus, a cause ofaction for unjust enrichment is the appropriate vehicle to pursue the recovery plaintiff seeks. The complaint states, "Defendants knew that an appraisal coming from them would bereasonably relied upon by the purchaser of the Painting." To recover under a theory of unjustenrichment, it is not necessary to show, as Supreme Court suggested, "that defendants' conductwas tortious or fraudulent, as it relates to plaintiff." To the contrary, "[u]njust enrichment. . . does not require the performance of any wrongful act by the one enriched"(Simonds v Simonds, 45 NY2d 233, 242 [1978]). Rather, "[a] quasi or constructivecontract rests upon the equitable principle that a person shall not be allowed to enrich himselfunjustly at the expense of another . . . It is an obligation which the law creates, inthe absence of any agreement, when and because the acts of the parties or others have placed inthe possession of one person money, or its equivalent, under such circumstances that in equityand good conscience he ought not to retain it . . . Thus, if one man has obtainedmoney from another, through the medium of oppression, imposition, extortion, or deceit, or bythe commission of a trespass, such money may be recovered back, for the law implies a promisefrom the wrong-doer to restore it to the rightful owner" (Miller v Schloss, 218 NY 400,407-408 [1916]). There is no requirement that the aggrieved party be in privity with the partyenriched at his or her expense (seeSperry v Crompton Corp., 8 NY3d 204, 215 [2007]; Bradkin v Leverton, 26NY2d 192, 195 [1970]; Joan Briton, Inc. v Streuber, 36 AD2d 464 [1971], affd30 NY2d 551 [1972]). The facts alleged in the complaint to support plaintiff's cause of action for unjust enrichmentare that defendants issued an inflated appraisal of the painting, knowing that due to theirworldwide expertise in the works of Paul Gauguin, "an appraisal coming from them would bereasonably relied upon by the purchaser of the painting." While defendants had not been told thepurpose of the appraisal, because of their ownership interest in the subject painting they certainlyshould have been aware that it was being sought in connection with a prospective purchase. Byfurther failing to disclose their interest in the work, defendants gave plaintiff no basis to questionthe impartiality of their assessment of its value. There is no question that privity is lacking so as to support a contract action based on theappraisal and that no misrepresentation was directly made to plaintiff so as to give rise to anaction for fraud, fraudulent misrepresentation or negligent misrepresentation. Moving beyond theelements necessary for an action at law to considerations of equity, "[t]he essential inquiry in anyaction for unjust enrichment or restitution is whether it is against equity and good conscience topermit the defendant to retain what is sought to be recovered" (Paramount Film Distrib.Corp. v State of New York, 30 NY2d 415, 421 [1972], cert denied 414 US 829[1973]). The involvement of defendants in the multifarious aspects of this transaction should give uspause. According to the complaint, the purchase was initiated when Patrick Blum, a director[*5]of plaintiff's parent, Phoenix Capital Reserve Fund, wasapproached by J. Amir Cohen about purchasing art works as an investment. Cohen informedBlum that the owner of the Gauguin was looking to sell it and that an appraisal of the paintingshould be obtained from Guy Wildenstein, a world renowned expert. In an appraisal dated July28, 2000, he valued the work at between $15 and $17 million. A certificate of authenticity for thepainting was issued by Daniel Wildenstein, on behalf of the Wildenstein Institute in Paris. TheGauguin was sold on August 25, 2000 by Peintures Hermes, a Swiss company owned by Guy,Daniel and Alec Wildenstein. The invoice provided by the seller indicated that although it wasonce owned by "Wildenstein, New York" (Wildenstein & Co., Inc.), it was presently in a"Private Collection." Following plaintiff's payment of $11.3 million to Calypso Fine Art Ltd.,which acted as intermediary in the transaction, $9.5 million was transferred to the Wildensteins'company, Peintures Hermes, which then paid $8.8 million to the owner, Allez la France Ltd., inwhich defendants also had an interest. Plaintiffs incurred more than $2 million in expenses inconnection with the purchase. At an auction held on November 8, 2000, the painting drew a highbid of only $9 million, which was lower than the reserved price. These facts make clear thatalthough privity is lacking with respect to the appraisal, there is privity between plaintiff anddefendants' companies with respect to the transaction sufficient to hold defendants liable on theground that they were unjustly enriched by plaintiff's purchase (cf. Sperry, 8 NY3d at216 [connection between various sellers of chemicals and purchaser using them to manufactureits products too attenuated to support claim for unjust enrichment]). On a motion to dismiss a pleading under CPLR 3211 (a) (7), the sole inquiry is whether,according the facts alleged in the complaint every favorable inference, any cognizable cause ofaction can be made out (see e.g. MerrillLynch, Pierce, Fenner & Smith, Inc. v Wise Metals Group, LLC, 19 AD3d 273, 275[2005]). The facts asserted in the complaint sufficiently allege that defendants used their superiorknowledge and contacts in the art world to interest plaintiff in purchasing the painting and tomanipulate plaintiff into paying an inflated price in reliance on not only the appraisal providedby Guy Wildenstein, but also the certificate of authenticity provided by Daniel Wildenstein andthe provenance provided by Peintures Hermes, the Wildensteins' company. There is no disagreement that the complaint fails to state an action for which the law affordsrelief because the asserted misrepresentation with respect to the value of the painting was notmade to plaintiff but to an intermediary. As Supreme Court stated, the claims at law fail"because, under the facts alleged, plaintiff was not entitled to rely on the Appraisal." The court,however, then simply applied the same rationale to dismiss plaintiff's prayer in equity, adisposition endorsed by the majority. The prevailing rule at law is that, under the doctrine of caveat emptor, a party to atransaction is required to assess its value and fitness to his or her circumstances, and the failureto exercise due care will preclude the grant of relief (see e.g. Charles Hyman, Inc. v OlsenIndus., 227 AD2d 270, 277 [1996] ["(a) party will not be relieved of the consequences of hisown failure to proceed with diligence or to exercise caution with respect to a businesstransaction"]; First Nationwide Bank v 965 Amsterdam, 212 AD2d 469, 472 [1995][debtor's failure to make independent analysis of property's suitability is governed by caveatemptor]). While mere nondisclosure, such as defendants' failure to disclose their interest in thesubject painting, is generally not actionable, this Court has recognized an exception where theseller has created a situation that substantially impairs the value of the transaction to the buyer.In those [*6]circumstances, the seller, as a matter of equity, isobligated to disclose to the purchaser information material to the value of the transaction(Stambovsky v Ackley, 169 AD2d 254, 259 [1991]). Accepting, as we must, the allegations of the complaint as true, defendants fostered theimpression that the Gauguin was worth much more than its actual value, causing plaintiff tooverpay and thereby impairing the value it received (see Cox v Microsoft Corp., 8 AD3d 39, 40 [2004] ["plaintiffs'allegations that Microsoft's deceptive practices caused them to pay artificially inflated prices forits products state a cause of action for unjust enrichment"]). Because defendant Guy Wildensteinis the acknowledged expert on Gauguin, the actual value of the painting was both peculiarlywithin his knowledge and readily accepted as authoritative. And because he derived a benefit asa result of the inflated appraisal, it cannot be characterized as merely "gratuitous advice" (cf.Ravenna v Christie's Inc., 289 AD2d 15, 16 [2001]). The complaint states a basis for equitable relief from the contract of sale. As stated inStambovsky, "Where a condition which has been created by the seller materially impairsthe value of the contract and is peculiarly within the knowledge of the seller or unlikely to bediscovered by a prudent purchaser exercising due care with respect to the subject transaction,nondisclosure constitutes a basis for rescission as a matter of equity. Any other outcome placesupon the buyer not merely the obligation to exercise care in his purchase but rather to beomniscient with respect to any fact which may affect the bargain. No practical purpose is servedby imposing such a burden upon a purchaser. To the contrary, it encourages predatory businesspractice and offends the principle that equity will suffer no wrong to be without a remedy" (169AD2d at 259). We further noted, "It has been remarked that the occasional modern cases whichpermit a seller to take unfair advantage of a buyer's ignorance so long as he is not actively misledare 'singularly unappetizing' " (id. at 260, quoting Prosser, Torts § 106, at 696 [4thed]). Having impaired the value of plaintiff's bargain by issuing an inflated appraisal, defendantswere equitably obligated to reveal their interest in the transaction. Plaintiff has stated grounds for equitable relief and is entitled to the opportunity to establishthat defendants were unjustly enriched to the extent the appraised value of the Gauguin wasinflated above its actual value. Thus, should plaintiff prevail, he should be permitted to recoverthe excess consideration paid as well as such reasonable expenses incurred in connection withthe purchase as may be consequent upon the inflated appraisal. Accordingly, the order should be modified to the extent of reinstating the cause of action forunjust enrichment. Nardelli, J. (dissenting). I would reverse, deny the motion to dismiss the complaint, andreinstate the complaint. At issue is whether the claims alleged in the complaint are sufficient to withstand apre-answer motion to dismiss. The following factual recitation is derived from the complaint. Itis alleged that Phoenix Capital Reserve Fund, the parent company of plaintiff Mandarin Trading,was approached in July 2000 about purchasing a Paul Gauguin painting, Paysage aux TroisArbres. Amir Cohen, a nonparty, informed Patrick Blum of Phoenix that he could arrange for the[*7]sale of the painting in exchange for a percentage of thesubsequent resale price. As a condition of the sale, Mandarin required an appraisal and reports ofthe painting's condition and prior ownership. Cohen agreed to obtain the information andrecommended that defendant Guy Wildenstein, a renowned Gauguin expert, provide theappraisal. In a July 28, 2000 letter to a purported Mandarin intermediary, Michel Reymondin,Wildenstein stated: "You have asked my opinion about the value of two paintings with which Iam quite familiar, since at one time they were sold by our firm . . . with regard to[the Painting], this is no. 489 of the catalogue raisonnÉ [a catalogue of Gauguin'spaintings] published by my grandfather . . . It was part of Mrs. Arthur Lehman'scollection . . . This picture was painted in 1892, during the artist's first voyage toTahiti. Given the rarity of the paintings from this era and its size, I think in the current market itwould be worth between 15 and 17 million dollars . . . I hope this has answered your questions." In an August 10 letter, Thomas Seydoux, the Director of Christie's Impressionist PaintingsDepartment, stated: "After having carefully examined the painting . . . we would bevery honored to be able to present this masterpiece . . . on November 8th, with anestimated price of US$ 12 million to US$ 16 million and a reserve [minimum sale] price set atUS$ 12 million." On or about August 12, Mandarin received the appraisal. The complaint alleges that a salesinvoice was issued on August 16 which contained the provenance of the painting and ledMandarin to conclude that Wildenstein once owned the painting, that he had sold it to Mrs.Lehman, and that it was part of a private collection as of the date of the invoice. On or aboutAugust 23, Daniel Wildenstein, of the Wildenstein Institute of Paris, certified the painting'sauthenticity, but made no mention of the defendants' alleged ownership interest in it. On or aboutAugust 25, 2000, Mandarin purchased the painting for $11.3 million, which it wired to CalypsoFine Art Ltd. Calypso then allegedly paid $9.5 million to Peintures Hermes S.A., which, in turn,transferred $8.8 million to an account of Allez la France Ltd., in which defendants purportedlyhad an interest. Mandarin also alleged that at least $2.3 million was paid to intermediaries inconnection with the sale. Christie's tried to sell the painting at its November 8 auction, butreceived a high bid of only $9 million, less than the reserve, and Mandarin retained the painting. Six years later, shortly before the running of the statute of limitations, Mandarin filed thiscomplaint, which contains claims for fraudulent misrepresentation and omission for defendants'failure to disclose their ownership interest and inflation of the appraisal; fraudulent concealmentbased on defendants' expert status; negligent omission and misrepresentation as a "specialrelationship of trust or confidence existed between" the parties based on defendants' expertise;breach of the contract to provide an appraisal, as a third-party beneficiary; breach of the duty ofgood faith and fair dealing in connection with such contract; and unjust enrichment as defendantsbenefitted by receiving more than the painting's value. Central to each of the six causes of actionis a specific allegation that the defendants failed to disclose their ownership interest in thepainting, as well as an allegation that the defendants appraised the painting for a substantiallyhigher value than it was worth.[*8] Prior to serving an answer defendants moved to dismissthe complaint pursuant to CPLR 3211 (a) (1) and (7). They argued there was no fraud as theappraisal contained a nonactionable opinion, that the unjust enrichment claim was without meritas the Christie's bid of $9 million was more than the $8.8 million defendants allegedly received,and that there was no privity between the parties. Mandarin responded that the opinion was actionable as it was expressed with knowledge ofits falsity, and that defendants were unjustly enriched as they received at least $9.5 millionthrough Peintures, and, upon information and belief, may have received the full sale price. The court granted the motion in its entirety. Making a factual finding on this pre-answermotion to dismiss, it found that since the record did not establish that defendants knew ofMandarin, and there was no indication that Mandarin would rely on the appraisal, no cause ofaction for fraudulent misrepresentation was stated. It further found that the fraudulentconcealment claim could not be sustained as it required the additional element of a duty todisclose arising out of a fiduciary or similar relation of trust and confidence, which was notsatisfied by allegations of defendants' superior knowledge or expertise. The court also found that Mandarin failed to establish a claim for negligentmisrepresentation or omission, as defendants were not in a special position of trust andconfidence with Mandarin, their expertise did not per se create a fiduciary relation, there was nocontract of privity between the parties, and Mandarin had not even alleged that defendants'conduct evinced an understanding of Mandarin's reliance. The court further found that Mandarin's failure to disclose its relationship with Reymondinand identify the provision alleged to have been breached, or to plead the provisions of thecontract, mandated dismissal of the breach of contract claim. Finally, in dismissing the unjustenrichment claim, the court found that plaintiff was not entitled to rely on the appraisal despitethe allegation that it had requested the appraisal in the first instance. It is axiomatic that on a CPLR 3211 motion to dismiss, the pleading is to be afforded aliberal construction, the facts alleged in the complaint accepted as true, and the plaintiff accordedthe benefit of every possible favorable inference (Leon v Martinez, 84 NY2d 83, 87-88[1994]). Where an issue cannot be resolved as a matter of law, and a factual question ispresented, the motion to dismiss must be denied (Condren, Walker & Co., Inc. v Wolf, 19 AD3d 151, 152 [2005])."[A] dismissal is warranted only if the documentary evidence submitted conclusively establishesa defense to the asserted claims as a matter of law" (Martinez at 88). Preliminary to any assessment of the viability of the causes of action is the recognition thatthe complaint alleges that Wildenstein, at the time he gave his "opinion," and stated that his firmhad "once" sold the painting, had an interest in the ownership of the painting. Nothing in therecord contradicts this allegation. There is certainly nothing in the record to establish as a matterof law that the defendants did not have an interest in the painting at the time of the issuance ofthe "opinion," or of the sale itself. Thus, in reviewing the challenges to the complaint it must beassumed that the defendants had a contemporaneous ownership interest in the painting.Additionally, since the complaint specifically alleges that Cohen recommended Wildenstein toprovide the appraisal, after Mandarin requested an appraisal, it should also be assumed thatWildenstein's written statement as to the painting's value was made at Mandarin's request, andthat Wildenstein was aware that Mandarin would rely on it. The majority makes a factual finding that the parties did not know of each other, and thatWildenstein did not know the reason for the appraisal, despite the absence of any documentary[*9]evidence for this assertion. The majority also concludes thatthe appraisal contains no facts which were misstated, despite the allegations in the complaint thatWildenstein, with a present interest in the painting, knowingly overstated the value of thepainting without disclosing his interest. The elements of a fraudulent misrepresentation claim consist of "a misrepresentation or amaterial omission of fact which was . . . known to be false by defendant, made forthe purpose of inducing the other party to rely upon it, justifiable reliance of the other party. . . and injury" (Lama Holding Co. v Smith Barney, 88 NY2d 413, 421[1996]). A claim for fraudulent concealment "requires additionally setting forth that thedefendant had a duty to disclose material information" (Swersky v Dreyer & Traub, 219AD2d 321, 326 [1996]). Such a duty arises where a fiduciary or confidential relationship existsbetween the parties (see Dembeck v 220Cent. Park S., LLC, 33 AD3d 491, 492 [2006]). It is clear that the first two causes of action for fraudulent misrepresentation are sufficientlypleaded. They allege that Mandarin sought an appraisal before purchasing the painting, thatWildenstein issued an appraisal upon which Mandarin relied, that Wildenstein failed to disclosehis ownership interest in the painting, and that his appraisal grossly inflated the value of thepainting. Furthermore, the appraisal itself contains the affirmative statement that his firm oncesold the painting. Discovery will establish whether Wildenstein had an ownership interest in thepainting at the time of the appraisal, but, if he or his firm did, the representation that he "once"sold the painting was clearly designed to conceal the possibility that he or his firm had a presentinterest in the painting. The claim for negligent misrepresentation is likewise sufficiently pleaded. By alleging thatthe appraisal was prepared at its request, Mandarin claims the existence of a "relationship soclose as to approach that of privity" (Parrott v Coopers & Lybrand, 95 NY2d 479,483-484 [2000]). The elements of the cause of action, "(1) an awareness by the maker of thestatement that it is to be used for a particular purpose; (2) reliance by a known party on thestatement in furtherance of that purpose; and (3) some conduct by the maker of the statementlinking it to the relying party and evincing its understanding of that reliance" (id. at 484[citations omitted]), are gleaned from the allegations that Wildenstein prepared the appraisal forMandarin's use in determining whether to purchase the painting. Unlike the circumstances in Ravenna v Christie's Inc. (289 AD2d 15 [2001]), uponwhich the majority relies, it is alleged here that the appraisal was made for a prospective buyer ofa painting in which the preparer had an undisclosed interest. In Ravenna the courtspecifically noted that a business relationship had not been created (id. at 16). Again,discovery would explore the nature of the relationship, if any, but, at this juncture, it cannot besaid as a matter of law that a business relationship did not exist, even if through intermediaries. Mandarin also pled sufficient facts to establish that it was an intended beneficiary to theappraisal contract and thus its claims for breaches of contract and the implied covenant of goodfaith and fair dealing should not have been dismissed. A party "asserting third-party beneficiaryrights under a contract must establish (1) the existence of a valid and binding contract betweenother parties, (2) that the contract was intended for their benefit and (3) that the benefit to them issufficiently immediate . . . to indicate the assumption by the contracting parties of aduty to compensate them if the benefit is lost" (Mendel v Henry Phipps Plaza W., Inc., 6 NY3d 783, 786 [2006][internal quotation marks omitted]). While the consideration to be rendered for the appraisal isnot specified, the complaint nevertheless alleges Wildenstein prepared the appraisal [*10]at the request of intermediaries, as a result of Mandarin's initialrequest, and that Mandarin would rely upon the appraisal in order to buy the painting. If true,Wildenstein's failure to advise of his interest in the painting, or to provide an honest appraisal,would expose him to liability. Thus, the fourth and fifth causes of action are also sufficientlypleaded. The claim for unjust enrichment should also be sustained. "The essential inquiry in anyaction for unjust enrichment . . . is whether it is against equity and good conscienceto permit the defendant to retain what is sought to be recovered" (Paramount Film Distrib.Corp. v State of New York, 30 NY2d 415, 421 [1972], cert denied 414 US 829[1973]). The majority makes a factual finding that plaintiff had no right to rely on the appraisal,in the absence of any evidence. I submit, respectfully, that the allegations that Wildensteinactually had an interest in a painting which he overvalued, with the knowledge that an unwittingbuyer would rely upon it, and that he profited unjustly, sufficiently make out a claim thatWildenstein benefitted inequitably from the transaction, and should return his gain. This is notthe juncture at which findings of fact are to be made, particularly since there is no conclusivedocumentary evidence indicating otherwise (see Martinez, 84 NY2d at 88). A plaintiff is not obligated to supply evidentiary support for his claims when faced with apre-answer motion to dismiss (see Salles v Chase Manhattan Bank, 300 AD2d 226, 228[2002]). I must part company with the majority's plaint that the record does not support plaintiff'sallegations. The record neither proves nor disproves the allegations. The answer to all of thequestions posed by the majority would hopefully have been obtained during discovery. In theinterim, I believe the allegations of the complaint were sufficient to withstand dismissal. Finally, I agree with the concurrence to the extent it suggests that if defendant inflated theappraisal knowing that plaintiff would rely on it, and received a monetary benefit from suchreliance, a cause of action for unjust enrichment would lie. I disagree, however, with thesuggestion that what is alleged is mere nondisclosure. If Wildenstein had an interest in thepainting at the time he issued the appraisal, rather than a former interest, as suggested in theappraisal report, his conduct amounted to more than nondisclosure. Since the record does not establish what the relationships of any of the parties were, or whatwas known or unknown by any of them, the need for discovery is evident, and the motion todismiss should be denied. [See 17 Misc 3d 1118(A), 2007 NY Slip Op 52059(U).]