| Selechnik v Law Off. of Howard R. Birnbach |
| 2011 NY Slip Op 02372 [82 AD3d 1077] |
| March 22, 2011 |
| Appellate Division, Second Department |
| Jacob Selechnik et al., Respondents, v Law Office ofHoward R. Birnbach, Appellant, et al., Defendant. |
—[*1] Michael Drezin, Bronx, N.Y., for respondents.
In an action, inter alia, to recover damages for fraud and negligent hiring and retention, thedefendant Law Office of Howard R. Birnbach appeals from an order of the Supreme Court,Rockland County (Garvey, J.), dated July 1, 2010, which denied its motion to dismiss thecomplaint pursuant to CPLR 3211 (a) (7).
Ordered that the order is affirmed, with costs.
In May 2008, the plaintiff Robin Shimoff, through her attorney, tendered a check in the sumof $710,000 to the defendant Mario A. Tolisano, an employee of the defendant Law Office ofHoward R. Birnbach (hereinafter the law office), to cover the purchase price of certain parcels ofreal property. In July 2008, Shimoff tendered to Tolisano the additional sum of $502,500 as adown payment for the purchase of certain other real property. Shimoff apparently borrowed theaforesaid funds from the plaintiff Jacob Selechnik. No closings of title occurred on eithertransaction, and the plaintiffs later learned, among other things, that Tolisano, whom theybelieved to be an attorney representing the seller of the properties, was not a licensed attorney.The plaintiffs commenced this action in November 2009, inter alia, to recover damages for fraudand negligent hiring and retention, and the law office moved to dismiss the complaint for failureto state a cause of action pursuant to CPLR 3211 (a) (7). The Supreme Court denied the motion.We affirm.
" 'In considering a motion to dismiss for failure to state a cause of action . . . thepleadings must be liberally construed . . . The sole criterion is whether from [thecomplaint's] four corners factual allegations are discerned which taken together manifest anycause of action cognizable at law' " (Dinerman v Jewish Bd. of Family & Children's Servs., Inc., 55 AD3d530, 530-531 [2008], quoting Gershon v Goldberg, 30 AD3d 372, 373 [2006]; see Leon vMartinez, 84 NY2d 83, 87-88 [1994]). Moreover, "a court may freely consider affidavitssubmitted by the plaintiff to remedy any defects in the complaint" (Leon v Martinez, 84NY2d at 88).
To properly plead a cause of action to recover damages for fraud, a plaintiff must allege that:(1) the defendant made a representation or a material omission of fact which was false and [*2]which the defendant knew to be false, (2) the misrepresentation wasmade for the purpose of inducing the plaintiff to rely upon it, (3) there was justifiable reliance onthe misrepresentation or material omission, and (4) injury (see Northeast Steel Prods., Inc. v John Little Designs, Inc., 80 AD3d585 [2011]). Moreover, CPLR 3016 (b) requires that "the circumstances constituting thewrong shall be stated in detail." However, " '[t]his provision requires only that the misconductcomplained of be set forth in sufficient detail to clearly inform a defendant with respect to theincidents complained of and is not to be interpreted so strictly as to prevent an otherwise validcause of action in situations where it may be impossible to state in detail the circumstancesconstituting a fraud' " (Pike v New YorkLife Ins. Co., 72 AD3d 1043, 1050 [2010], quoting Lanzi v Brooks, 43 NY2d778, 780 [1977]). In addition, "at this early stage of the litigation, plaintiffs are entitled to themost favorable inferences, including inferences arising from the positions and responsibilities ofdefendants," and "plaintiffs need only set forth sufficient information to apprise defendants of thealleged wrongs" (DDJ Mgt., LLC vRhone Group L.L.C., 78 AD3d 442, 443 [2010]).
Here, while the complaint contains no allegations of any affirmative misrepresentations bythe law office itself, a fraud cause of action was sufficiently stated by the allegations containedtherein which give rise to permissible inferences that the law office had certain knowledge orinformation regarding Tolisano's employment with it and his activities thereunder that were notascertainable by the plaintiffs (seeWilliams v Sidley Austin Brown & Wood, L.L.P., 38 AD3d 219, 220 [2007]).
The complaint alleges, inter alia, that Tolisano was employed by the law office, held himselfout as an attorney with the law office, and distributed his business card to the plaintiffs, which,while not explicitly stating that he was an attorney, indicated that he was employed by the lawoffice. Furthermore, the complaint alleges that at the time Tolisano made his representations tothe plaintiffs, which induced them to turn over their money to him, the law office knew or shouldhave known "that its attorney-employee-impersonator, cloaked with the apparent authority thatcomes from employment at the [law office], would offer false representations." These allegationswere supplemented by the affidavit of the plaintiffs' real estate attorney, wherein he stated thatwhen he met with Tolisano, Tolisano said he was a lawyer and gave him a business card "thatmade it appear as if [Tolisano] was a lawyer at the [law office]," and that during the pendency ofthe transactions, the plaintiffs' attorney sent a certified letter to Tolisano at the law office andmade several telephone calls to the law office asking to speak with Tolisano and left messages, towhich he received no reply.
Based on these allegations, the complaint adequately states causes of action to recoverdamages from the law office for the torts allegedly committed by Tolisano under the doctrine ofrespondeat superior and on the theory of negligent hiring and retention, which are not required tobe pleaded with specificity (see Porcelliv Key Food Stores Co-Op., Inc., 44 AD3d 1020 [2007]).
The law office's remaining contentions are without merit, are raised for the first time onappeal, or have been rendered academic by our determination. Covello, J.P., Belen, Hall andCohen, JJ., concur.