| Colasacco v Robert E. Lawrence Real Estate |
| 2009 NY Slip Op 08988 [68 AD3d 706] |
| December 1, 2009 |
| Appellate Division, Second Department |
| Ricky Colasacco et al., Respondents, v Robert E.Lawrence Real Estate et al., Appellants. |
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In an action to recover damages for fraud and, in effect, negligent misrepresentation, thedefendants appeal from an order of the Supreme Court, Westchester County (Liebowitz, J.),entered April 1, 2009, which denied their motion to dismiss the complaint pursuant to CPLR3211 (a) (5) and (7).
Ordered that the order is reversed, on the law, with costs, that branch of the defendants'motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) is granted, and thatbranch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211 (a)(5) is denied as academic.
In October 2002 the defendant Christopher DiCorato, a real estate agent employed by thedefendant Robert E. Lawrence Real Estate (hereinafter Lawrence, and hereinafter together thedefendants), met with the plaintiffs and showed them a parcel of vacant property that was forsale in Stamford, New York. DiCorato allegedly walked the property with the plaintiffs, showedthem the boundary lines and markers, and provided them with a survey of the property. In oraround January 2003 the plaintiffs purchased the subject property, and thereafter constructed ahome on it. In or around March 2006, when the plaintiffs were attempting to sell the subjectproperty, they learned that their home was partially situated on land owned by a neighbor. Tocorrect the error, the plaintiffs, inter alia, purchased that portion of the neighbor's property uponwhich their home was located.
In April 2008 the plaintiffs commenced an action against the defendants in Supreme Court,Westchester County, to recover damages for negligence. By decision and order entered October2, 2008, the Supreme Court granted the defendants' motion to dismiss the complaint astime-barred without prejudice to the commencement of a new action. On October 8, 2008 theplaintiffs commenced the instant action by the filing of a summons and verified complaint. Thecomplaint alleged one cause of action sounding in fraud and one cause of action soundingin[*2]"mistake." Affording the second cause of action a liberalconstruction, we find that it is actually in the nature of one sounding in negligentmisrepresentation. The crux of both causes of action was that DiCorato, an employee ofLawrence, in his role as a real estate agent for the sale of the subject property, misrepresented tothe plaintiffs the location of the property's boundary lines and that the plaintiffs relied upon thosemisrepresentations to their detriment. The Supreme Court denied the defendants' motion todismiss the complaint. We reverse.
On a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading is to be afforded aliberal construction and the plaintiff accorded the benefit of every possible inference (seeLeon v Martinez, 84 NY2d 83, 87 [1994]). The court's function on a motion to dismisspursuant to CPLR 3211 (a) (7) is to determine whether the plaintiff's factual allegations fit withinany cognizable theory, without regard to whether the allegations ultimately can be established(see Union State Bank v Weiss, 65AD3d 584 [2009]).
CPLR 3016 (b) provides, in relevant part, that "[w]here a cause of action or defense is basedupon misrepresentation, fraud, mistake . . . the circumstances constituting thewrong shall be stated in detail." The specificity requirements are relaxed where it is alleged thatthe particular circumstances of the alleged fraud are peculiarly within the defendants' knowledge(see Pludeman v Northern Leasing Sys.,Inc., 10 NY3d 486, 491-492 [2008]; Pericon v Ruck, 56 AD3d 635, 636 [2008]).
"The essential elements of a cause of action sounding in fraud are a misrepresentation or amaterial omission of fact which was false and known to be false by defendant, made for thepurpose of inducing the other party to rely upon it, justifiable reliance of the other party on themisrepresentation or material omission, and injury" (Orlando v Kukielka, 40 AD3d 829, 831 [2007]; see Ross v DeLorenzo, 28 AD3d631, 636 [2006]). Here, the complaint fails to allege the elements of fraud with sufficientspecificity. In particular, the complaint fails to allege that DiCorato's alleged misrepresentationsto the plaintiffs were known by the defendants to be false. Furthermore, it is clear from the faceof the complaint that the plaintiffs' supposed reliance upon DiCorato's alleged misrepresentationsconcerning the location of the property's boundary lines was unreasonable as a matter of law(see Orlando v Kukielka, 40 AD3d at 831). There was no allegation in the complaint thatthe dimensions and boundary lines of the subject property were within the exclusive knowledgeof the defendants. Indeed, the plaintiffs could easily have ascertained these facts through the useof ordinary means (see Esposito v Saxon Home Realty, 254 AD2d 451 [1998]; Bennett v Citicorp Mtge., Inc., 8AD3d 1050 [2004]; Mosca v Kiner, 277 AD2d 937, 938 [2000]). Accordingly, theSupreme Court should have dismissed the fraud cause of action pursuant to CPLR 3211 (a) (7).
Similarly, the cause of action sounding, in effect, in negligent misrepresentation also fails tomeet the specificity requirements of CPLR 3016 (b). Furthermore, in order to prevail on such acause of action, a plaintiff must establish that the defendant had a duty to use reasonable care toimpart correct information due to a special relationship between the parties, that the informationwas incorrect or false, and that the plaintiff reasonably relied upon the information (seeGrammer v Turits, 271 AD2d 644, 645 [2000]). The complaint fails to allege that thedefendants had a duty to the plaintiffs to impart correct information arising out of a specialrelationship between them. Moreover, as with the fraud cause of action, the complaint fails toallege circumstances under which the plaintiffs' reliance upon DiCorato's allegedmisrepresentations could be considered reasonable or justifiable. Thus, the Supreme Courtshould also have dismissed the second cause of action pursuant to CPLR 3211 (a) (7). Dillon,J.P., Miller, Angiolillo and Dickerson, JJ., concur.