| Mariano v Fiorvante |
| 2014 NY Slip Op 04742 [118 AD3d 961] |
| June 25, 2014 |
| Appellate Division, Second Department |
[*1]
| Angelina Mariano, Appellant, v DonnaFiorvante et al., Respondents. |
Warren S. Hecht, Forest Hills, N.Y. (Angelo A. DiGangi of counsel), forappellant.
Tracy & Stilwell, P.C., Staten Island, N.Y. (Rodney Stilwell of counsel), forrespondents.
In an action to recover damages for fraud, breach of contract, conversion,negligence, and "elder abuse," the plaintiff appeals from an order of the Supreme Court,Queens County (Siegal, J.), entered June 10, 2013, which granted the defendants' motionpursuant to CPLR 3211 (a) (5) to dismiss the causes of action sounding in conversionand negligence as time-barred and pursuant to CPLR 3211 (a) (7) to dismiss the causesof action sounding in fraud, breach of contract, and "elder abuse" for failure to state acause of action, and denied, as academic, her cross motion pursuant to CPLR 3403 (a)(4) for a trial preference.
Ordered that the order is affirmed, with costs.
The complaint alleges that the defendants, relatives of the plaintiff, took sums ofmoney and property from the plaintiff with no intention of paying the money back orreturning the property. The complaint asserts causes of action alleging fraud, breach ofcontract, conversion, negligence, and "elder abuse." In the order appealed from, theSupreme Court granted the defendants' motion pursuant to CPLR 3211 (a) (5) to dismissthe causes of action sounding in conversion and negligence as time-barred and pursuantto CPLR 3211 (a) (7) to dismiss the causes of action sounding in fraud, breach ofcontract, and "elder abuse" for failure to state a cause of action,
In assessing a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint forfailure to state a cause of action, the facts as alleged in the complaint and the oppositionpapers must be accepted as true; the court must accord the plaintiff the benefit of everypossible favorable inference and determine only whether the facts as alleged fit withinany cognizable legal theory (seeSiegmund Strauss, Inc. v East 149th Realty Corp., 20 NY3d 37, 43 n 4 [2012];Nonnon v City of NewYork, 9 NY3d 825, 827 [2007]; Leon v Martinez, 84 NY2d 83, 87[1994]).
The Supreme Court properly directed the dismissal of the cause of action sounding infraud. To properly plead a cause of action to recover damages for fraud, a plaintiff mustallege that (1) the defendant made a false representation of fact, (2) the defendant hadknowledge of the falsity, (3) the misrepresentation was made in order to induce theplaintiff's reliance, (4) there was justifiable reliance on the part of the plaintiff, and (5)the plaintiff was injured by the reliance (see Eurycleia Partners, LP v Seward & Kissel, LLP, 12NY3d 553, 559 [2009]; Lama Holding Co. v Smith [*2]Barney, 88 NY2d 413, 421 [1996]; Channel MasterCorp. v Aluminium Ltd. Sales, 4 NY2d 403, 406-407 [1958]). In addition, CPLR3016 (b) requires that where a cause of action is based upon misrepresentation, fraud,mistake, willful deceit, breach of trust, or undue influence, the circumstances constitutingthe wrong shall be stated in detail. Here, neither the complaint nor the factualsubmissions made in opposition to the subject motion alleged any false representation offact by any of the defendants (cf. Matter of Baugher, 98 AD3d 1111, 1112 [2012]; Quinones v Schaap, 91 AD3d739, 740 [2012]; Ryan vCover, 75 AD3d 502, 503 [2010]). The Supreme Court also properly concludedthat the complaint failed to adequately allege the essential elements of a cause of actionto recover damages for breach of contract (cf. Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173,182 [2011]; W. Park Assoc.,Inc. v Everest Natl. Ins. Co., 113 AD3d 38, 44 [2013]; JP Morgan Chase v J.H. Elec. ofN.Y., Inc., 69 AD3d 802, 803 [2010]). The Supreme Court properly determinedthat the plaintiff's conclusory claim of "elder abuse" failed to fit within any cognizablecause of action (cf. Campbell vThomas, 73 AD3d 103, 105 [2010]).
The cause of action sounding in conversion was barred by the applicable statute oflimitations since this action was commenced more than three years after the alleged"theft" occurred (see CPLR 214 [3]). Similarly, this action was commenced morethan three years after any alleged negligence had been committed. Accordingly, theSupreme Court properly granted those branches of the defendants' motion which was todismiss the cause of actions of alleging negligence and the failure to return the plaintiff'spersonal property (see CPLR 3211 [a] [5]).
In light of the foregoing, the Supreme Court properly denied, as academic, theplaintiff's cross motion pursuant to CPLR 3403 (a) (4) for a trial preference. Theplaintiff's remaining contentions are not properly before this Court, as they were notraised in opposition to the defendants' motion or in support of her own cross motion.Rivera, J.P., Hall, Sgroi and Maltese, JJ., concur.