| Sanford/Kissena Owners Corp. v Daral Props., LLC |
| 2011 NY Slip Op 04446 [84 AD3d 1210] |
| May 24, 2011 |
| Appellate Division, Second Department |
| Sanford/Kissena Owners Corp., Appellant, v DaralProperties, LLC, et al., Respondents, et al., Defendants. |
—[*1] Weisberg & Weisberg, Great Neck, N.Y. (Sidney A. Weisberg of counsel), forrespondents.
In an action, inter alia, to rescind an agreement between the plaintiff and defendant DaralProperties, LLC, dated August 4, 2003, the plaintiff appeals, as limited by its brief, from (1) somuch of an order of the Supreme Court, Queens County (Weiss, J.), entered March 30, 2010, asgranted those branches of the motion of defendants Daral Properties, LLC, and Albert Creccopursuant to CPLR 3211 (a) (7) which were to dismiss the first, second, fourth, and fifth causes ofaction insofar as asserted against those defendants, and (2) so much of a judgment of the samecourt entered May 20, 2010, as, upon the order, is in favor of the defendants Daral Properties,LLC, and Albert Crecco and against it dismissing the first, second, fourth, and fifth causes ofaction insofar as asserted against those defendants. The notice of appeal from the order is deemedalso to be a notice of appeal from the judgment (see CPLR 5501 [c]).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants Daral Properties, LLC, and AlbertCrecco.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [c]).
On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to state a causeof action, the court must accept the facts alleged in the complaint as true, accord the plaintiff thebenefit of every possible inference, and determine only whether the facts as alleged fit within anycognizable legal theory (see Nonnon v City of New York, 9 NY3d 825, 827 [2007];Leon v Martinez, 84 NY2d 83, 87 [1994]). However, bare legal conclusions asserted in acomplaint are not presumed to be true (see Baron v [*2]Galasso, 83 AD3d 626 [2d Dept 2011]; Rozen v Russ &Russ, P.C., 76 AD3d 965, 969 [2010]).
Applying these principles here, the Supreme Court properly granted that branch of themotion of the defendants Daral Properties, LLC (hereinafter Daral), and Albert Crecco pursuantto CPLR 3211 (a) (7) which was to dismiss the first cause of action insofar as asserted againstthem. The first cause of action seeks to rescind an agreement between the plaintiff and Daraldated August 4, 2003, upon the ground that it was procured by fraud. However, the complaintdoes not allege that Daral or Crecco made any affirmative misrepresentations of fact to inducethe plaintiff to enter into the subject agreement. Furthermore, to the extent that the first cause ofaction is predicated on the failure to disclose material facts, "[t]he mere nondisclosure of amaterial fact, unaccompanied by some deceptive act, does not constitute fraud absent aconfidential or fiduciary relationship" (First Keystone Consultants, Inc. v DDR Constr.Servs., 74 AD3d 1135, 1138 [2010]; see Dembeck v 220 Cent. Park S., LLC, 33AD3d 491, 492 [2006]). The complaint does not allege sufficient facts from which it could beinferred that Daral or Crecco had a fiduciary or confidential relationship with the plaintiff thatwould place them under a duty to disclose any material information (see Levin v Kitsis,82 AD3d 1051 [2011]; Guarino v North Country Mtge. Banking Corp., 79 AD3d 805,807 [2010]; East End Labs., Inc. v Sawaya, 79 AD3d 1095, 1096 [2010]; Seldin vSmith, 76 AD3d 623, 625 [2010]; Dembeck v 220 Cent. Park S., LLC, 33 AD3d at492; WIT Holding Corp. v Klein, 282 AD2d 527, 529 [2001]). Accordingly, thecomplaint fails to state a cause of action insofar as asserted against Daral and Crecco to rescindthe agreement upon the ground that it was procured by fraud.
The second cause of action, which seeks to rescind the agreement upon the ground ofunilateral mistake, was also properly dismissed insofar as asserted against Daral and Crecco. Thecomplaint alleges that the plaintiff failed to ascertain the benefit that the agreement would conferupon Daral under applicable zoning laws. This was merely a failure of ordinary care, whichprecludes a cause of action based on unilateral mistake (see Culver & Theisen v Starr RealtyCo. [NE], 307 AD2d 910, 911 [2003]; see also Da Silva v Musso, 53 NY2d 543, 552[1981]; Industron Assoc. v United Innovations, 259 AD2d 592, 593 [1999]).
The fourth cause of action fails to state a cause of action to recover damages insofar asasserted against Daral and Crecco on the theory that they aided and abetted the alleged breach offiduciary duty by the defendant John DiMilia. One who aids and abets a breach of a fiduciaryduty is liable for that breach, even if he or she had no independent fiduciary obligation to theallegedly injured party, if the alleged aider and abettor rendered substantial assistance to thefiduciary in the course of effecting the alleged breach of duty (see Velazquez v Decaudin,49 AD3d 712, 716 [2008]; Caprer v Nussbaum, 36 AD3d 176, 193 [2006]). " 'Substantialassistance occurs when a defendant affirmatively assists, helps conceal or fails to act whenrequired to do so, thereby enabling the breach to occur' " (Monaghan v Ford Motor Co.,71 AD3d 848, 850 [2010], quoting Kaufman v Cohen, 307 AD2d 113, 126 [2003]).Here, however, the complaint does not allege that Daral or Crecco affirmatively assisted DiMiliain making his allegedly fraudulent representations to the plaintiff, or that they helped DiMiliaconceal any facts. The conclusory allegation that Crecco urged DiMilia, on an unspecifiedoccasion, to induce the plaintiff to sign the agreement is insufficient to establish the element ofsubstantial assistance (see Roni LLC v Arfa, 72 AD3d 413, 414 [2010], affd 15NY3d 826 [2010]; Stanfield Offshore Leveraged Assets, Ltd. v Metropolitan Life Ins.Co., 64 AD3d 472, 476 [2009]; Kaufman v Cohen, 307 AD2d at 126). Furthermore,while "mere inaction" can constitute substantial assistance where the defendant owes a fiduciaryduty directly to the plaintiff, the plaintiff did not plead any facts that would support a finding thatDaral and Crecco owed a fiduciary duty directly to it (see Baron v Galasso, 83 AD3d626, 629 [2011]).
Finally, the Supreme Court also properly dismissed the plaintiff's fifth cause of action insofaras asserted against Daral and Crecco, since it merely sought the alternate remedy of monetarydamages in the event that the agreement were not rescinded on the ground of fraud or unilateralmistake.
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Dillon, J.P., Balkin, Eng and Roman, JJ., concur.