| Circle Assoc., L.P. v Starlight Props., Inc. |
| 2012 NY Slip Op 05953 [98 AD3d 596] |
| August 15, 2012 |
| Appellate Division, Second Department |
| Circle Associates, L.P., Appellant, v Starlight Properties,Inc., Respondent. |
—[*1] Roe Taroff Taitz & Portman, LLP, Bohemia, N.Y. (Linda D. Calder and Steven Taitz ofcounsel), for respondent.
In an action to recover damages for fraud, the plaintiff appeals (1), as limited by its brief,from so much of an order of the Supreme Court, Suffolk County (Whelan, J.), dated July 25,2011, as granted those branches of the defendant's motion which were for summary judgmentdismissing the complaint and on the first counterclaim, and (2) from a judgment of the samecourt entered September 12, 2011, which, upon the order, is in favor of the defendant and againstit, in effect, dismissing the complaint, and is in favor of the defendant and against it in theprincipal sum of $33,770 on the defendant's first counterclaim.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendant.
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 [a] [1]).
The plaintiff entered into a contract to purchase a parcel of real property within a proposedsubdivision owned by the defendant for the sum of $4.5 million. Thereafter, an affiliate of theplaintiff entered into two contracts with the defendant to perform infrastructure work on thesubdivision. A subsequent letter agreement between the plaintiff and the defendant, executed onthe closing date, modified the contract of sale and, inter alia, provided the plaintiff a creditagainst the purchase price for the price of the ongoing infrastructure work performed by itsaffiliate. The letter agreement also set forth additional terms between the parties regarding theirrespective rights to excess material removed from the subdivision. The plaintiff agreed to pay thedefendant the sum of $137,310 for excess material being removed in connection with theinfrastructure work, and the defendant was given a credit against the purchase price in exchangefor the plaintiff being entitled to all additional excess material remaining on the site. Afterpurchasing the property, the plaintiff [*2]entered into an "order onconsent" with the Town of Brookhaven in which it was agreed that 65,800 cubic yards of excessmaterial had been removed from the site without a required permit. The plaintiff agreed, interalia, to pay the Town the sum of $197,400 (representing $3 per cubic yard) for the amount ofexcess material removed without a permit.
Subsequently, the plaintiff commenced this action to recover damages in the amount it paidthe Town and the market value of 65,800 cubic yards of excess material. The plaintiff allegedthat the defendant fraudulently induced it to enter into the letter agreement by misrepresentingthe amount of excess material on the site. The defendant asserted counterclaims, inter alia,alleging breach of contract based on the plaintiff's failure to make the final installment paymentof $33,770 for excess material, as required by the letter agreement. The Supreme Court grantedthose branches of the defendant's motion which were for summary judgment dismissing thecomplaint and on its counterclaim to recover the final installment payment of $33,770.
"The elements of a cause of action sounding in fraud are a material misrepresentation of anexisting fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiablereliance upon the misrepresentation, and damages" (Introna v Huntington Learning Ctrs., Inc., 78 AD3d 896, 898[2010]; see Eurycleia Partners, LP vSeward & Kissel, LLP, 12 NY3d 553, 559 [2009]). Here, the defendant established itsprima facie entitlement to judgment as a matter of law dismissing the complaint by submittingevidence demonstrating that it did not make a material misrepresentation that induced theplaintiff to enter into the letter agreement. In opposition, the plaintiff failed to raise a triable issueof fact. Accordingly, the Supreme Court properly granted that branch of the defendant's motionwhich was for summary judgment dismissing the complaint.
The Supreme Court also properly granted that branch of the defendant's motion which wasfor summary judgment on its counterclaim to recover the final installment payment under theletter agreement. Skelos, J.P., Balkin, Lott and Miller, JJ., concur. [Prior Case History: 2011NY Slip Op 32233(U).]