| Summit Dev. Corp. v Interstate Masonry Corp. |
| 2013 NY Slip Op 02736 [105 AD3d 1031] |
| April 24, 2013 |
| Appellate Division, Second Department |
| Summit Development Corp., Doing Business as SummitWaterproofing & Restoration Co., Appellant, v Interstate Masonry Corp. et al.,Respondents. |
—[*1] The Delorio Law Group, PLLC, Rye Brook, N.Y. (Howard B. Cohen of counsel),for respondents.
In an action to recover damages for fraud, the plaintiff appeals, as limited by its brief,from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated April2, 2012, as granted those branches of the defendants' motion which were pursuant toCPLR 3211 (a) (7) to dismiss the first and second causes of action and denied, asacademic, its cross motion to convert the defendants' motion into one for summaryjudgment and, upon conversion, award summary judgment in its favor on the issue ofliability on the first and second causes of action.
Ordered that the order is modified, on the law and in the exercise of discretion, bydeleting the provision thereof granting those branches of the defendants' motion whichwere to dismiss the first and second causes of action, and substituting therefor aprovision denying those branches of the motion; as so modified, the order is affirmedinsofar as appealed from, with costs to the plaintiff.
The first and second causes of action, asserted against the defendants InterstateMasonry Corp. (hereinafter Interstate) and Janine Frantellizzi, respectively, seek torecover damages for fraud. The defendants moved pursuant to CPLR 3211 (a) (7) todismiss the complaint. The plaintiff opposed the motion and cross-moved to convert thedefendants' motion into one for summary judgment and, upon conversion, awardsummary judgment in its favor on the issue of liability on the first and second causes ofaction. The plaintiff appeals from so much of an order of the Supreme Court as grantedthose branches of the defendants' motion which were to dismiss the first and secondcauses of action and denied, as academic, the plaintiff's cross motion.
"The elements of a cause of action [alleging] fraud require a materialmisrepresentation of a fact, knowledge of its falsity, an intent to induce reliance,justifiable reliance by the plaintiff and damages" (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d553, 559 [2009]). Viewing the complaint in the light most favorable to the plaintiff,and accepting the factual allegations as true, the complaint, as amplified by the affidavitsubmitted by the plaintiff, sufficiently [*2]stated causesof action against Interstate and Janine Frantellizzi, Interstate's president, to recoverdamages for fraud (see Black v Chittenden, 69 NY2d 665, 668 [1986]; Rabos v R&R Bagels & Bakery,Inc., 100 AD3d 849 [2012]; Introna v Huntington Learning Ctrs., Inc., 78 AD3d 896,897 [2010]; DDJ Mgt., LLC vRhone Group L.L.C., 78 AD3d 442, 443-444 [2010]; Buxton Mfg. Co. vValiant Moving & Stor., 239 AD2d 452, 453-454 [1997]). Accordingly, thosebranches of the defendants' motion which were pursuant to CPLR 3211 (a) (7) to dismissthe first and second causes of action should have been denied.
In light of the foregoing, the plaintiff's cross motion to convert the defendants'motion to dismiss into one for summary judgment and, upon conversion, award summaryjudgment in its favor on the issue of liability on the first and second causes of action isacademic. Since the defendants' motion has been determined, it can no longer beconverted. Dillon, J.P., Austin, Sgroi and Cohen, JJ., concur.