| Board of Mgrs. of Marke Gardens Condominium v 240/242 FranklinAve., LLC |
| 2010 NY Slip Op 02499 [71 AD3d 935] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Board of Managers of Marke Gardens Condominium,Respondent, v 240/242 Franklin Avenue, LLC, et al., Appellants, et al.,Defendants. |
—[*1] Daniel F. Spitalnic, Great Neck, N.Y. for respondent.
In an action, inter alia, to recover damages for common-law fraud, fraud in the inducement,and violations of General Business Law §§ 349 and 350, the defendants 240/242Franklin Avenue, LLC, and Namik Marke, also known as Mike Marke, appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Kings County (Starkey, J.), datedNovember 6, 2008, as denied those branches of the motion of the defendants Royal Roofing andConstruction, Inc., and Namik Marke, also known as Mike Marke, which were pursuant to CPLR3211 (a) (1) and (7) to dismiss the complaint insofar as asserted against Namik Marke, alsoknown as Mike Marke.
Ordered that the appeal by the defendant 240/242 Franklin Avenue, LLC, is dismissed, as itis not aggrieved by the portions of the order appealed from (see CPLR 5511); and it isfurther,
Ordered that the order is affirmed insofar as appealed from by the defendant Namik Marke,also known as Mike Marke; and it is further,
Ordered that one bill of costs is awarded to the plaintiff payable by the defendant NamikMarke, also known as Mike Marke.
In 2003, the defendant sponsor, 240/242 Franklin Avenue, LLC (hereinafter the sponsor),contracted to develop a new four-story condominium containing eight apartments, to be knownas the Marke Gardens Condominiums, located on Franklin Avenue in Brooklyn. In 2004 thesponsor filed a condominium offering plan, as required by the Martin Act, with the New YorkState Attorney General (see General Business Law § 352 et seq.) whichwas signed personally by the defendant Namik Marke, also known as Mike Marke (hereinafterthe defendant), who is the Sponsor's manager and the president of the defendant Royal Roofingand Construction, Inc. (hereinafter Royal), hired as the development's general contractor.
Based upon alleged defects in the development's construction, the plaintiff condominiumboard commenced the instant action, inter alia, to recover damages for common-law fraud, fraudin the inducement, and violations of General Business Law §§ 349 and 350, against,[*2]among others, the defendant, Royal, and the sponsor. Amongother causes of action, the complaint alleged that the defendant made statements andrepresentations orally, in the purchase agreements, and in brochures and advertisementspublished in connection therewith, that were false, fraudulent, and contained misrepresentationsand material omissions. More specifically, the plaintiff alleged, among other things, that,pursuant to the offering plan, advertisements, brochures, and purchase agreements, the buildingwas to be constructed with an elevator, which was never installed, and that the building was tobe "a first class luxury building," but, in fact, contained numerous design and constructiondefects as detailed in an evaluation prepared by an engineering firm.
The defendant and Royal moved, inter alia, pursuant to CPLR 3211 (a) (1) and (7) to dismissthe causes of action alleging common-law fraud, fraud in the inducement, and violations ofGeneral Business Law §§ 349 and 350 insofar as asserted against the defendant. Inthe order appealed from, the Supreme Court, inter alia, denied the motion to dismiss. We affirmthe order insofar as appealed from.
The causes of action against the defendant were based upon the alleged fraud and materialmisrepresentations contained not only in the offering plan, but in brochures, advertisements, andpurchase agreements, as well as oral statements made by the defendant. As such, viewing theallegations in the complaint as true, and resolving all inferences in favor of the plaintiff (see Goldson v Walker, 65 AD3d1084 [2009], citing Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the facts asalleged fit within a cognizable legal theory, and are not precluded by the Martin Act, as they donot "rel[y] entirely on alleged omissions from filings required by the Martin Act and theAttorney General's implementing regulations" (Kerusa Co. LLC v W10Z/515 Real Estate Ltd. Partnership, 12 NY3d236, 247 [2009]; see CPC Intl. v McKesson Corp., 70 NY2d 268, 286-287 [1987];Goldson v Walker, 65 AD3d at 1085; cf. Hamlet on Olde Oyster Bay Home Owners Assn., Inc. v Holiday Org.,Inc., 65 AD3d 1284, 1287 [2009]). In addition, contrary to the defendant's contention,the documentary evidence does not utterly refute the plaintiff's factual allegations, norconclusively establish a defense as a matter of law (see Birnbaum v Yonkers Contr. Co.,272 AD2d 355 [2000]; Zanani v Savad, 228 AD2d 584 [1996]; see also State of NewYork v Sonifer Realty Corp., 212 AD2d 366, 367 [1995]; see generally Rubinstein v Salomon,46 AD3d 536, 539 [2007]).
The defendant's remaining contention is without merit. Dillon, J.P., Santucci, Balkin andSgroi, JJ., concur. [Prior Case History: 20 Misc 3d 1138(A), 2008 NY Slip Op51789(U).]