| JAF Partners, Inc. v Rondout Sav. Bank |
| 2010 NY Slip Op 03282 [72 AD3d 898] |
| April 20, 2010 |
| Appellate Division, Second Department |
| JAF Partners, Inc., et al., Respondents, v Rondout SavingsBank, Appellant. |
—[*1] Danzig Fishman & Decea, White Plains, N.Y. (Richard A. Danzig, Donald S. Campbell, andIsaac Szpilzinger of counsel), for respondents.
In an action to recover damages for fraud, the defendant appeals, as limited by its brief, fromso much of an order of the Supreme Court, Westchester County (Rudolph, J.), entered June 11,2009, as denied its motion for summary judgment dismissing the cause of action sounding infraud.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendant's motion for summary judgment dismissing the cause of action sounding in fraud isgranted.
In 2006 the plaintiffs JAF Partners, Inc., and Landex, Inc., commenced this action againstthe defendant Rondout Savings Bank, alleging that the defendant knowingly assisted theplaintiffs' president in carrying out an embezzlement scheme. In 2008 the Supreme Courtdismissed two of the three causes of action. Following discovery, the Supreme Court denied thedefendant's motion for summary judgment dismissing the remaining cause of action, whichsounded in fraud.
The defendant's motion for summary judgment dismissing the cause of action sounding infraud should have been granted. "In order to recover damages for fraud, a plaintiff must prove(1) a misrepresentation or a material omission of fact which was false and known to be false bythe defendant, (2) the misrepresentation was made for the purpose of inducing the plaintiff torely upon it, (3) justifiable reliance of the plaintiff on the misrepresentation or material omission,and (4) injury" (Shao v 39 Coll. Point Corp., 309 AD2d 850, 851 [2003]). Here, inopposition to the defendant's prima facie showing of entitlement to judgment as a matter of law,the plaintiffs failed to raise a triable issue of fact with respect to either scienter or justifiablereliance (see Apollo H.V.A.C. Corp. vHalpern Constr., Inc., 55 AD3d 855, 857 [2008]; Spencer v Green, 42 AD3d 521, 522-523 [2007]; Shao v 39Coll. Point Corp., 309 AD2d at 851; cf. Giant Group v Arthur Andersen LLP, 2 AD3d 189, 190[2003]).
Moreover, the plaintiffs' contention that the defendant improperly withheld certaindocuments, and is therefore responsible for any gaps in the plaintiffs' proof, is without merit. The[*2]plaintiffs filed a note of issue and a certificate of readiness,which stated both that disclosure was complete and that there were no outstanding discoveryrequests. Accordingly, they cannot now complain about the adequacy of the defendant'sdisclosure (see Iscowitz v County ofSuffolk, 54 AD3d 725 [2008]; Melcher v City of New York, 38 AD3d 376, 377 [2007]; Simpson v City of New York, 10AD3d 601, 602 [2004]).
In light of our determination, we need not consider the parties' remaining contentions.Skelos, J.P., Austin, Roman and Sgroi, JJ., concur.