| Sargiss v Magarelli |
| 2014 NY Slip Op 01737 [115 AD3d 842] |
| March 19, 2014 |
| Appellate Division, Second Department |
| Frieda Sargiss, Appellant, v Marlene Magarelli, asExecutor of Isaac G. Sargiss, Also Known as Isaac George Sarkissian, Deceased, et al.,Respondents. |
—[*1] Bleakley Platt & Schmidt, LLP, White Plains, N.Y. (William H. Mulligan, Jr., ofcounsel), for respondent Marlene Magarelli, executor of the estate of Isaac G. Sargiss,also known as Isaac George Sarkissian. Joseph S. Garafola, Elmsford, N.Y. (Lawrence S. Warshaw of counsel), forrespondents Julius Sargiss and Panrad Automotive Industries, Inc.
In an action to recover damages for fraud, the plaintiff appeals from an order of theSupreme Court, Westchester County (Loehr, J.), entered June 5, 2012, which granted theoral motion of the defendant Marlene Magarelli, executor of the estate of Isaac G.Sargiss, also known as Isaac George Sarkissian, and the separate oral motion of thedefendants Julius Sargiss and Panrad Automotive Industries, Inc., pursuant to CPLR4401, made at the close of the plaintiff's case at a nonjury trial, for judgment as a matterof law dismissing the complaint insofar as asserted against each of them.
Ordered that on the Court's own motion, the notice of appeal is treated as anapplication for leave to appeal, and leave to appeal is granted (see CPLR 5701[c]); and it is further,
Ordered that the order is affirmed, with one bill of costs payable to the respondentsappearing separately and filing separate briefs.
" 'A trial court's grant of a CPLR 4401 motion for judgment as a matter of law isappropriate where the trial court finds that, upon the evidence presented, there is norational process by which the fact trier could base a finding in favor of the nonmovingparty' " (Clarke v Phillips,112 AD3d 872, 874 [2013], quoting Szczerbiak v Pilat, 90 NY2d 553, 556[1997]). " 'In considering the motion, the trial court must afford the party opposing themotion every inference which may be properly drawn from the facts presented, and thefacts must be considered in a light most favorable to the nonmovant' " (Clarke vPhillips, 112 AD3d at 874, quoting Miller v Bah, 74 AD3d 761, 763 [2010]; seeSzczerbiak v Pilat, 90 NY2d at 556).
" 'The elements of a cause of action sounding in fraud are a materialmisrepresentation of an existing fact, made with knowledge of the falsity, an intent toinduce reliance thereon, [*2]justifiable reliance upon themisrepresentation, and damages' " (McMorrow v Angelopoulos, 113 AD3d 736, 739-740[2014], quoting Fromowitz vW. Park Assoc., Inc., 106 AD3d 950, 951 [2013]; see Eurycleia Partners, LP vSeward & Kissel, LLP, 12 NY3d 553, 559 [2009]).
Here, the Supreme Court properly granted the oral motion of the defendant MarleneMagarelli, executor of the estate of Isaac G. Sargiss, also known as Isaac GeorgeSarkissian, and the separate oral motion of the defendants Julius Sargiss and PanradAutomotive Industries, Inc., pursuant to CPLR 4401, made at the close of the plaintiff'scase, for judgment as a matter of law dismissing the complaint insofar as asserted againsteach of them. Considering the evidence before the court in the light most favorable to theplaintiff (see Szczerbiak v Pilat, 90 NY2d at 556; Clarke v Phillips, 112AD3d at 874; Miller v Bah, 74 AD3d at 763), there was no rational process bywhich the court, as trier of fact, could have concluded that the plaintiff reasonably orjustifiably relied on the misrepresentations her now-deceased former husband allegedlymade during their divorce action with regard to the sale of his share in a business entityto his brother (see KNK Enters.,Inc. v Harriman Enters., Inc., 33 AD3d 872, 872 [2006]). Skelos, J.P.,Dickerson, Leventhal and Miller, JJ., concur.