| Greenberg v Blake |
| 2014 NY Slip Op 03233 [117 AD3d 683] |
| May 7, 2014 |
| Appellate Division, Second Department |
[*1]
| Harvey L. Greenberg, Esq., as Guardian of the Propertyof Adrienne Sealy, Also Known as Adrian Sealey and Others, Plaintiff, v JoelBlake et al., Defendants, and Ramapo Realty, LLC, Defendant/Third-PartyPlaintiff-Appellant. Kevin Jay Vernick et al., Third-PartyDefendants-Respondents. |
Butler, Fitzgerald, Fiveson & McCarthy, New York, N.Y. (David K. Fivesonand Mark J. Krueger of counsel), for defendant/third-party plaintiff-appellant.
Kevin J. Vernick, PLLC, New York, N.Y., for third-party defendant-respondentKevin Jay Vernick.
Furman Kornfeld & Brennan, LLP, New York, N.Y. (A. Michael Furman ofcounsel), for third-party defendant-respondent Marc Daniels.
In an action to set aside, on the ground of fraud, conveyances of certain real propertyand mortgages encumbering the real property, the defendant/third-party plaintiff appealsfrom an order of the Supreme Court, Kings County (Ash, J.), dated August 10, 2012,which granted the separate motions of the third-party defendants pursuant to CPLR 3211(a) to dismiss the third-party complaint insofar as asserted against each of them.
Ordered that the order is affirmed, with one bill of costs.
The Supreme Court properly granted those branches of the third-party defendants'motions which were pursuant to CPLR 3211 (a) (7) to dismiss the first cause of action inthe third-party complaint, for common-law indemnification, insofar as asserted againsteach of them. In considering a motion to dismiss for failure to state a cause of actionpursuant to CPLR 3211 (a) (7), the court must accept the facts as alleged in the complaintas true, accord the plaintiff the benefit of every possible favorable inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory (see Nonnon v City of NewYork, 9 NY3d 825, 827 [2007]). "[T]he key element of a common-law cause ofaction for indemnification is not a duty running from the indemnitor to the injured party,but rather is 'a separate duty owed the indemnitee by the indemnitor' "(Raquet v Braun, 90 NY2d 177, 183 [1997], quoting Mas v Two BridgesAssoc., 75 NY2d 680, 690 [1990]). Here, the third-party complaint does not allegethe existence of any duty owed by the third-party defendants to the third-party plaintiff(see Raquet v Braun, 90 NY2d at 183; Balkheimer v Spanton, 103 AD3d 603, 604 [2013]).
The Supreme Court also properly granted those branches of the third-partydefendants' motions which were pursuant to CPLR 3211 (a) (7) to dismiss the third causeof action in the third-party complaint, alleging fraud, insofar as asserted against each ofthem. "A cause of [*2]action to recover damages forfraud requires allegations of (1) a false representation of fact, (2) knowledge of thefalsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) damages" (Stein v Doukas, 98 AD3d1024, 1025 [2012]). "Pursuant to CPLR 3016 (b), a cause of action alleging fraudmust be pleaded with particularity so as to inform the defendant of the alleged wrongfulconduct and give notice of the allegations the plaintiff intends to prove" (McDonnell v Bradley, 109AD3d 592, 593 [2013]). Here, the third cause of action in the third-party complaintfails to satisfy the requirements of CPLR 3016 (b) because this cause of action containsonly bare and conclusory allegations without any supporting detail (see Stein vDoukas, 98 AD3d at 1025-1026).
The Supreme Court also properly granted that branch of the motion of the third-partydefendant Kevin Jay Vernick which was pursuant to CPLR 3211 (a) (1) to dismiss thesecond cause of action, under Executive Law § 135, which was assertedagainst him only. Executive Law § 135 provides, in relevant part, that "[f]orany misconduct by a notary public in the performance of any of his powers such notarypublic shall be liable to the parties injured for all damages sustained by them" (Chicago Tit. Ins. Co. vLaPierre, 104 AD3d 720 [2013]; see Executive Law§ 135). A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1)may be granted if "documentary evidence utterly refutes [the] plaintiff's factualallegations, thereby conclusively establishing a defense as a matter of law" (WhiteboxConcentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs.,Inc., 20 NY3d 59, 63 [2012]). Here, the documentary evidence utterly refutes theallegations of notary misconduct as set forth in the second cause of action.
The appellant's remaining contentions are without merit. Mastro, J.P., Balkin, Sgroiand LaSalle, JJ., concur.