| Goldson v Walker |
| 2009 NY Slip Op 06507 [65 AD3d 1084] |
| September 15, 2009 |
| Appellate Division, Second Department |
| Percival Goldson, Respondent, v Malvia Walker et al.,Defendants, and Rephoel "Raphael" A. Weitzner, Appellant. |
—[*1] Gina Calabrese, Jamaica, N.Y. (Brian Lacoff and Kimberly Linkletter on the brief), forrespondent.
In an action, inter alia, to recover damages for aiding and abetting fraud, the defendantRephoel "Raphael" A. Weitzner appeals, as limited by his brief, from so much of an order of theSupreme Court, Queens County (Grays, J.), dated February 20, 2008, as denied his motionpursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
Viewing the allegations in the complaint as true and resolving all inferences in favor of theplaintiff (see CPLR 3211 [a] [7]; Leon v Martinez, 84 NY2d 83, 87-88 [1994];Surace v Commonwealth Land Tit. Ins.Co., 62 AD3d 861, 862 [2009]), the complaint adequately states a cause of actionagainst the appellant to recover damages for aiding and abetting fraud. The complaint alleges,among other things, that the appellant, who was the attorney for one of the owners of acorporation that purchased certain real property in an allegedly fraudulent transaction, knew ofthe fraud and advanced its commission. Specifically, the complaint alleges, among other things,that (a) a power of attorney purportedly appointing Julie Wilson as the plaintiff's agent andattorney-in-fact was invalid on its face in light of the numerous alterations and discrepanciestherein, (b) the subject premises were being sold for far less than their fair market value, (c) atitle report failed to indicate that certain conditions had been fulfilled with respect to "verifyingthe validity" of the power of attorney, and (d) the appellant provided a false office phone numberin the real property transfer report. Accordingly, contrary to the appellant's contention, thecomplaint adequately set forth that he had actual knowledge of the fraud and that he providedsubstantial assistance to the commission of the fraud, which are essential elements of a cause ofaction to recover damages for aiding and abetting fraud (see CPC Intl. v McKesson Corp.,70 NY2d 268, 285-286 [1987]; Houbigant, Inc. v Deloitte & Touche, 303 AD2d 92,100 [2003]; Rizel v Bodner, 225 AD2d 410 [1996]; Franco v English, 210 AD2d630, 633 [1994]; cf. National Westminster Bank v Weksel, 124 AD2d 144, 147 [1987]).Accordingly, the Supreme Court properly denied the appellant's motion pursuant to CPLR 3211(a) (7) to dismiss the complaint insofar as asserted against him. Fisher, J.P., Angiolillo, Balkinand Belen, JJ., concur.