| Stewart Tit. Ins. Co. v Liberty Tit. Agency, LLC |
| 2011 NY Slip Op 03114 [83 AD3d 532] |
| April 19, 2011 |
| Appellate Division, First Department |
| Stewart Title Insurance Company, Appellant, v LibertyTitle Agency, LLC, et al., Defendants, and Albert Yorio, Respondent. Extell DevelopmentCompany et al., Intervenor-Defendants. |
—[*1] Silvia L. Serpe, LLC, New York (Silvia L. Serpe of counsel), for respondent.
Judgment, Supreme Court, New York County (Richard B. Lowe, III, J.), entered October 20,2009, dismissing the complaint as against defendant Yorio, unanimously reversed, on the law,with costs, the judgment vacated, and the complaint reinstated as against Yorio.
Plaintiff alleges that defendant Liberty Title Agency, LLC, and its three members, includingYorio, who was also Liberty's executive vice president and general counsel, failed to recorddeeds and mortgages after closings and, instead, misappropriated for their personal benefit theescrow funds entrusted to them. The fact that the complaint refers to the owners and officers ofLiberty as the "Individual Defendants" does not render the causes of action insufficiently statedas to any one of the individual defendants, since "Individual Defendants" refers not to a diversegroup of defendants to which entirely different acts giving rise to the action may be attributed,but to the three members of a single corporate defendant, who all are alleged to have engaged inthe same acts. Thus, the complaint gave Yorio notice of the transactions and occurrences allegedto give rise to liability on his part (see CPLR 3013; compare Deep v Urbach, Kahn &Werlin LLP, 19 Misc 3d 1142[A], 2008 NY Slip Op 51139[U] [2008]).
Viewed in the light most favorable to plaintiff, the complaint alleges fraud with sufficientparticularity to satisfy the heightened pleading requirements of CPLR 3016 (b), since the factsalleged permit the "reasonable inference" that Yorio participated in the alleged wrongful conduct(see Pludeman v Northern Leasing Sys.,Inc., 10 NY3d 486, 491-492 [2008]; Polonetsky v Better Homes Depot, 97NY2d 46, 55 [2001]). The complaint states the cause of action for breach of fiduciary duty withsufficient particularity, since the parties are alleged to have created a relationship of higher trustthan that which arose from the underwriting agreement alone (see EBC I, Inc. v Goldman, Sachs &Co., 5 NY3d 11, 19-20 [2005]; see also Northeast Gen. Corp. v WellingtonAdv., 82 NY2d 158 [1993]). The complaint also states facts sufficient to support [*2]piercing the corporate veil, since it alleges that Yorio used hisdomination and control over the corporation to divert escrow funds for his personal benefit andperpetuate a fraud against plaintiff (see Matter of Morris v New York State Dept. of Taxation& Fin., 82 NY2d 135, 141 [1993]). Concur—Tom, J.P., Mazzarelli, Acosta, Renwickand Freedman, JJ.