| Jones v OTN Enter., Inc. |
| 2011 NY Slip Op 04207 [84 AD3d 1027] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Angil Jones et al., Respondents, v OTN Enterprise, Inc., etal., Defendants, and Bank of America, N.A., Appellant. |
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In an action, inter alia, to recover damages for fraud, the defendant Bank of America, N.A.,appeals, as limited by its notice of appeal and brief, from so much of an order of the SupremeCourt, Kings County (Schmidt, J.), dated January 12, 2008, as denied those branches of itsmotion which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the first, second, and thirdcauses of action alleging a violation of General Business Law § 349, common-law fraud,and aiding and abetting fraud, respectively, insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof denyingthose branches of the motion of the defendant Bank of America, N.A., which were pursuant toCPLR 3211 (a) (7) to dismiss the first, second, and third causes of action alleging a violation ofGeneral Business Law § 349, common-law fraud, and aiding and abetting fraud,respectively, insofar as asserted against it, and substituting therefor a provision granting thosebranches of the motion; as so modified, the order is affirmed insofar as appealed from, with coststo the defendant Bank of America, N.A.
The plaintiff commenced this action against, among others, the appellant. The complaintcontained, inter alia, causes of action alleging a violation of General Business Law § 349,common-law fraud, and aiding and abetting fraud.
The Supreme Court properly denied that branch of the appellant's motion which waspursuant to CPLR 3211 (a) (1). Contrary to the appellant's contention, the documentary evidenceit submitted did not utterly refute the plaintiff's factual allegations or conclusively establish adefense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314,326 [2002]; Leon v Martinez, 84 NY2d 83, 88 [1994]).
However, the Supreme Court should have granted those branches of the appellant's motionwhich were pursuant to CPLR 3211 (a) (7) to dismiss the causes of action sounding in fraud,aiding and abetting fraud, and a violation of General Business Law § 349 insofar asasserted against it for failure to state a cause of action. The amended complaint does not satisfythe heightened pleading requirements of CPLR 3016 (b) with respect to the fraud and aiding andabetting fraud causes of action insofar as they are [*2]assertedagainst the appellant (see Brualdi vIBERIA, Lineas Aereas de EspaÑa, S.A., 79 AD3d 959, 960 [2010]; NationalWestminster Bank v Weksel, 124 AD2d 144, 149 [1987]). The amended complaint also doesnot allege any deceptive or misleading conduct on the part of the appellant within the meaning ofGeneral Business Law § 349 (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2dat 324; Ladino v Bank of Am., 52AD3d 571, 574 [2008]). Rivera, J.P., Dickerson, Lott and Cohen, JJ., concur.