| Stein v Doukas |
| 2012 NY Slip Op 06203 [98 AD3d 1024] |
| September 19, 2012 |
| Appellate Division, Second Department |
| Douglas Stein, as Executor of Claire Stein, Deceased, et al.,Respondents-Appellants, v Ted Doukas et al.,Appellants-Respondents. |
—[*1] Law Office of Kevin T. Grennan, PLLC, Garden City, N.Y., forrespondent-appellant.
In an action, inter alia, to recover damages for fraud, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), datedSeptember 3, 2009, as denied their motion pursuant to CPLR 3211 (a) (1), (3), (5), (10) and, ineffect, CPLR 3211 (a) (7) and 3016 (b) to dismiss the complaint, or alternatively, pursuant toCPLR 3212 for summary judgment dismissing the complaint, and the plaintiff cross-appeals, aslimited by his brief, from so much of the same order as denied that branch of his cross motionwhich was for summary judgment on the complaint.
Ordered that the order is modified, on the law, (1) by deleting the provisions thereof denyingthose branches of the defendants' motion which were, in effect, pursuant to CPLR 3211 (a) (7) todismiss the first and third causes of action for failure to comply with the pleading requirementsof CPLR 3016 (b), and substituting therefor provisions granting those branches of the motion, (2)by deleting the provisions thereof denying those branches of the defendants' motion which were,in effect, pursuant to CPLR 3211 (a) (7) to dismiss the second and fourth causes of action forfailure to state a cause of action, and substituting therefor provisions granting those branches ofthe motion, and (3) by deleting the provision thereof denying that branch of the defendants'motion which was for summary judgment dismissing the fifth cause of action and substitutingtherefor a provision granting that branch of the motion; as so modified, the order is affirmedinsofar as appealed and cross-appealed from, with one bill of costs to the defendants.
This action arises out of the transfers of certain parcels of real property. The plaintiff assertedfive causes of action. The first and third causes of action allege fraud, the second and fourth seekpunitive damages, and the fifth seeks an accounting. The defendants moved pursuant to CPLR3211 (a) to dismiss the complaint on various grounds and for summary judgment dismissing thecomplaint, and the plaintiff cross-moved, inter alia, for summary judgment on the complaint. TheSupreme Court denied the motion, and denied that branch of the cross motion which was for[*2]summary judgment on the complaint. The defendants appeal,and the plaintiff cross-appeals, respectively, from stated portions of the order.
A cause of action to recover damages for fraud requires allegations of (1) a falserepresentation of fact, (2) knowledge of the falsity, (3) intent to induce reliance, (4) justifiablereliance, and (5) damages (see EurycleiaPartners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]; Pace v Raisman & Assoc., Esqs., LLP,95 AD3d 1185 [2012]; Selechnik vLaw Off. of Howard R. Birnbach, 82 AD3d 1077 [2011]). Moreover, CPLR 3016 (b)requires that the circumstances underlying a cause of action based on fraud be stated "in detail"(CPLR 3016 [b]; see Scott v Fields,92 AD3d 666, 668 [2012]). Here, inasmuch as the causes of action alleging fraud containonly bare and conclusory allegations, without any supporting detail, they fail to satisfy therequirements of CPLR 3016 (b). Consequently, the Supreme Court should have granted thosebranches of the defendants' motion which were, in effect, pursuant to CPLR 3211 (a) (7) todismiss the first and third causes of action for failure to comply with the pleading requirementsof CPLR 3016 (b) (see Orchid Constr.Corp. v Gonzalez, 89 AD3d 705, 707-708 [2011]; High Tides, LLC v DeMichele, 88 AD3d 954, 959 [2011]; Moore v Liberty Power Corp., LLC, 72AD3d 660, 661 [2010]; cf. Dumas vFiorito, 13 AD3d 332, 333 [2004]).
The defendants also were entitled to dismissal of the second and fourth causes of action,which sought punitive damages, because New York does not recognize an independent cause ofaction to recover punitive damages (see Rocanova v Equitable Life Assur. Socy. of U.S.,83 NY2d 603, 616 [1994]; 99 CentsConcepts, Inc. v Queens Broadway, LLC, 70 AD3d 656, 659 [2010]). Even if thesecond and fourth causes of action are deemed to be referable to the causes of action allegingfraud, given the inadequacy of the underlying causes of action alleging fraud, the causes of actionseeking punitive damages must be dismissed pursuant CPLR 3211 (a) (7) for failure to state acause of action (see Brualdi v IBERIA,Lineas Aereas de Espa�a, S.A., 79 AD3d 959, 961 [2010]; Stangel v Zhi Dan Chen, 74 AD3d1050, 1053 [2010]).
Finally, the fifth cause of action sought an accounting. The defendants established, primafacie, that they were not in a fiduciary relationship with the plaintiff (cf. Benfeld v Fleming Props., LLC, 89AD3d 654, 655 [2011]; East EndLabs., Inc. v Sawaya, 79 AD3d 1095, 1096-1097 [2010]). In opposition, the plaintifffailed to raise a triable issue of fact (cf.Akkaya v Prime Time Transp., Inc., 45 AD3d 616, 617 [2007]). Consequently, theSupreme Court should have granted that branch of the defendants' motion which was forsummary judgment dismissing the fifth cause of action (see Goldfine v Sichenzia, 73 AD3d 854 [2010]).
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Balkin, J.P., Hall, Lott and Cohen, JJ., concur.