| Great Eagle Intl. Trade, Ltd. v Corporate Funding Partners,LLC |
| 2013 NY Slip Op 01530 [104 AD3d 731] |
| March 13, 2013 |
| Appellate Division, Second Department |
| Great Eagle International Trade, Ltd., et al.,Respondents, v Corporate Funding Partners, LLC, Doing Business as LC.Com,et al., Appellants, and Letter-Credit, Ltd., et al., Defendants. |
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Poltorak, PC, Brooklyn, N.Y. (Elie C. Poltorak of counsel), forrespondents.
In an action, inter alia, to recover damages for fraud and breach of contract, thedefendants Corporate Funding Partners, LLC, doing business as LC.Com, LC.Com, Ltd.,Marshall Jablon, Caren Raphael, and Joseph Lau appeal from so much of an order of theSupreme Court, Kings County (Schmidt, J.), dated April 8, 2011, as denied their motion,made jointly with the defendants Fin-Trade, Ltd., and Tellarian Funding, Ltd., which waspursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against theappellants.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court correctly determined that the draft letter of credit submitted insupport of the appellants' motion to dismiss the complaint insofar as asserted againstthem did not represent a contract between the plaintiffs and any of the appellants, andwas insufficient to conclusively establish as a matter of law a defense to the assertedclaims (see Fontanetta v JohnDoe 1, 73 AD3d 78, 83 [2010]; CPLR 3211 [a] [1]).
To the extent that the indemnification agreement between the parties constituted arelease, the plaintiffs sufficiently averred grounds for setting aside this release (seeNewin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217 [1975]; Gordon v Boyd, 96 AD3d719 [2012]). Therefore, the appellants were not entitled to dismissal pursuant toCPLR 3211 (a) (1) or (5) on this basis.
In support of that branch of their motion which was pursuant to CPLR 3211 (a) (7),the appellants failed to establish that the plaintiffs' allegations were insufficient to stateclaims arising out of an alleged fiduciary relationship between the parties. Accepting thefacts alleged in the complaint as true and according the plaintiffs the benefit of everypossible favorable inference, as we must on a motion pursuant to CPLR 3211 (a) (7)(see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we find that the facts asalleged fit within a cognizable legal theory (see WIT Holding Corp. v Klein, 282AD2d 527, 529 [2001]; Saboundjian v Bank Audi [USA], 157 AD2d 278, 283[1990]).[*2]
The Supreme Court also properly denied thatbranch of the appellants' motion which was to dismiss the causes of action insofar asasserted against the individual appellants. With respect to these appellants, the plaintiffswere required to plead both the general elements of fraud, i.e., misrepresentation of amaterial fact, scienter, justifiable reliance, and injury (Sirohi v Lee, 222 AD2d222 [1995]), and that the individual appellants participated in or had knowledge of thefraud (see Polonetsky v Better Homes Depot, 97 NY2d 46, 55 [2001]). At thisearly juncture, accepting the factual allegations in the complaint as true, including theallegations as to the corporate positions and titles of these individual appellants, andaccording the plaintiffs every favorable inference, the plaintiffs adequately pleaded factsfrom which it could be inferred that these individuals were involved in or knew about thealleged fraudulent conduct (seePludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492 [2008]).
The appellants' remaining contentions are without merit. Dillon, J.P., Angiolillo,Dickerson and Hinds-Radix, JJ., concur.