| Regina v Marotta |
| 2009 NY Slip Op 08203 [67 AD3d 766] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Joseph Regina, Appellant, v Anthony Marotta, Jr.,Respondent, et al., Defendants. |
—[*1] Jaspan Schlesinger, LLP, Garden City, N.Y. (Linda S. Agnew of counsel), forrespondent.
In an action, inter alia, to recover damages for fraud, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.), datedJune 2, 2008, as granted that branch of the motion of the defendant Anthony Marotta, Jr., whichwas pursuant 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.
On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (7), the court mustaccept the facts as alleged in the complaint as true, accord the plaintiff the benefit of everypossible favorable inference, and determine only whether the facts as alleged fit within anycognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). To recoverdamages for fraud, a plaintiff must prove (1) a misrepresentation or an omission of material factwhich was false and known to be false by the defendant, (2) the misrepresentation was made forthe purpose of inducing the plaintiff to rely upon it, (3) justifiable reliance of the plaintiff on themisrepresentation or material omission, and (4) injury (see Ozelkan v Tyree Bros. Envtl. Servs., Inc., 29 AD3d 877, 878[2006]). The plaintiff must show not only that he actually relied on the misrepresentation, butalso that such reliance was reasonable (see Spector v Wendy, 63 AD3d 820 [2009]). Here, the plaintifffailed to adequately allege justifiable reliance and damages resulting therefrom (see Ideal Steel Supply Corp. v Anza,63 AD3d 884 [2009]; Giurdanella v Giurdanella, 226 AD2d 342, 343 [1996];Beltrone v General Schuyler & Co., 223 AD2d 938, [*2]941 [1996]). Accordingly, the Supreme Court properly granted thatbranch of the motion of the defendant Anthony Marotta, Jr., which was pursuant to CPLR 3211(a) (7) to dismiss the cause of action to recover damages for fraud insofar as asserted againsthim.
The plaintiff's remaining contentions are without merit. Mastro, J.P., Balkin, Eng andLeventhal, JJ., concur.