| Crescentini v Slate Hill Biomass Energy, LLC |
| 2014 NY Slip Op 00475 [113 AD3d 806] |
| January 29, 2014 |
| Appellate Division, Second Department |
| Keiko Crescentini, Respondent, v Slate HillBiomass Energy, LLC, et al., Appellants, et al., Defendants. |
—[*1] Galarza Law Office, P.C., Massapequa, N.Y. (J. Ceasar Galarza of counsel), forrespondent.
In an action, inter alia, to recover damages for fraud, the defendants Slate HillBiomass Energy, LLC, and Loretta Oliva appeal, as limited by their brief, from so muchof an order of the Supreme Court, Nassau County (Bucaria, J.), entered May 24, 2012, asconditioned the denial of the plaintiff's motion for a preliminary injunction upon theoffer, by the defendant Loretta Oliva, of additional security to the plaintiff in the sum of$1,065,000, and thereupon directed that a temporary restraining order issued onDecember 9, 2011, be continued pending judicial approval of the additional security tobe offered by the defendant Loretta Oliva, denied their separate motion pursuant toCPLR 3211 (a) and 3016 (b) to dismiss the complaint insofar as asserted against them,and denied, as academic, their separate motion to vacate the temporary restraining order.
Ordered that the order is modified, on the law, by deleting the provisions thereofconditioning the denial of the plaintiff's motion for a preliminary injunction upon theoffer, by the defendant Loretta Oliva, of additional security to the plaintiff in the sum of$1,065,000 and directing that the temporary restraining order issued on December 9,2011, be continued pending judicial approval of the additional security to be offered bythe defendant Loretta Oliva; as so modified, the order is affirmed insofar as appealedfrom, without costs or disbursements.
Contrary to the contentions of the defendants Slate Hill Biomass Energy, LLC, andLoretta Oliva (hereinafter together the Slate Hill defendants), the Supreme Courtproperly denied their motion pursuant to CPLR 3211 (a) and 3016 (b) to dismiss thecomplaint insofar as asserted against them on the ground that the plaintiff failed to pleadfraud with the requisite specificity. To properly plead a cause of action to recoverdamages for fraud, a plaintiff must allege that (1) the defendant made a falserepresentation of fact, (2) the defendant had knowledge of the falsity, (3) themisrepresentation was made in order to induce the plaintiff's reliance, (4) there wasjustifiable reliance on the part of the plaintiff, and (5) the plaintiff was injured by thereliance (see Vermont Mut. Ins.Co. v McCabe & Mack, LLP, 105 AD3d 837 [2013]; Pace v Raisman & Assoc., Esqs.,LLP, 95 AD3d 1185 [2012]). In addition, CPLR 3016 (b) requires that where acause of action is based upon misrepresentation, fraud, mistake, willful deceit, breach oftrust, or undue influence, the circumstances constituting the wrong shall be stated indetail. This pleading requirement "should not be confused with unassailable proof offraud," and "may be met when the facts are sufficient to permit a reasonable inference ofthe alleged conduct" (Pludeman v Northern Leasing Sys., Inc., 10 [*2]NY3d 486, 492 [2008]; see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d553, 559 [2009]; McDonnell v Bradley, 109 AD3d 592, 593 [2013]).Viewing the complaint in the light most favorable to the plaintiff, and deeming allallegations therein to be true (see Auguston v Spry, 282 AD2d 489 [2001]), theplaintiff has sufficiently pleaded all of the elements of fraud.
However, the Slate Hill defendants correctly contend that the Supreme Court erred inrequiring Oliva to offer the plaintiff additional security in the sum of $1,065,000 as acondition of denying the plaintiff's motion for a preliminary injunction, and in directingthe continuance of a temporary restraining order pending judicial approval of theadditional security. In determining the motion for a preliminary injunction, the SupremeCourt concluded that the plaintiff had not shown that she would suffer irreparable injuryabsent the granting of a preliminary injunction. Upon making this determination, it waserror to deny the preliminary injunction motion on the condition that additional securitybe provided, and to continue the temporary restraining order pending approval of theadditional security. Pursuant to CPLR 6301, a temporary restraining order may begranted pending a hearing for a preliminary injunction where it appears that immediateand irreparable injury, loss, or damage will result unless the defendant is restrainedbefore the hearing can be held. Once the court determined that the plaintiff had notshown that she would suffer irreparable injury, there was no basis to continue thetemporary restraining order.
We reject the Supreme Court's reasoning that, since the plaintiff might have beenentitled to an order of attachment pursuant to CPLR 6201 (3), it was therefore proper todirect Oliva to offer the plaintiff additional security. The plaintiff did not move for anorder of attachment and, even had she done so, she would not have been entitled to one,as she did not establish that the Slate Hill defendants, with intent to defraud her orfrustrate the enforcement of a judgment that might be rendered in her favor, hadassigned, disposed of, encumbered, or secreted property, or removed it from the state, orwere about to do any of those acts (see CPLR 6201 [3]; Benedict vBrowne, 289 AD2d 433 [2001]). Accordingly, the possibility that the plaintiff mighthave sought the provisional remedy of attachment did not provide a basis for the court todirect Oliva to pay additional security to the plaintiff.
We note that the temporary restraining order was set forth in an order to show causethat provided that the temporary restraining order would only remain in effect pendingthe hearing and determination of the plaintiff's motion for a preliminary injunction. Sincethe preliminary injunction motion has been decided, and we have deleted the provision ofthe order appealed from extending the effective dates of the temporary restraining order,the temporary restraining order is no longer in effect. In light of our determination, wediscern no basis on which to disturb the Supreme Court's determination to deny, asacademic, the Slate Hill defendants' separate motion to vacate the temporary restrainingorder, since our determination has caused the temporary restraining order to expire.Dillon, J.P., Leventhal, Hall and Cohen, JJ., concur. [Prior Case History: 2012 NYSlip Op 31412(U).]