| Air & Power Transmission, Inc. v Weingast |
| 2014 NY Slip Op 05757 [120 AD3d 524] |
| August 13, 2014 |
| Appellate Division, Second Department |
[*1](August 13, 2014)
| Air & Power Transmission, Inc., et al.,Appellants, v Robin S. Weingast et al., Respondents. |
Peter B. Gierer, Hauppauge, N.Y., for appellants.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Janene M.Marasciullo of counsel), for respondents Robin S. Weingast and Robin S. Weingast& Associates, Inc.
McElroy, Deutsch Mulvaney & Carpenter, LLP, New York, N.Y. (Joshua A.Zielinski of counsel), for respondent Massachusetts Mutual Life InsuranceCompany.
Baritz & Colman LLP, New York, N.Y. (John D. Sardesai-Grant and David S.Richan of counsel), for respondent Designs For Finance, Inc.
In an action, inter alia, to recover damages for fraud, breach of fiduciary duty, andviolation of General Business Law § 349, the plaintiffs appeal from (1) anorder of the Supreme Court, Suffolk County (Whelan, J.), dated June 6, 2012, whichgranted the separate motions of the defendants Robin S. Weingast and Robin S.Weingast & Associates, Inc., and the defendant Designs For Finance, Inc., todismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a), and(2) an order of the same court dated September 25, 2012, which granted the separatemotion of the defendant Massachusetts Mutual Life Insurance Company to dismiss thecomplaint insofar as asserted against it pursuant to CPLR 3211 (a).
Ordered that the orders are affirmed, with one bill of costs to the respondentsappearing separately and filing separate briefs.
The plaintiff Air & Power Transmission, Inc., is a small business owned by theplaintiff John F. Barone. The plaintiffs Richard F. Barone and Kenneth Barone wereemployees of Air & Power Transmission, Inc. In August 2011, the plaintiffscommenced this action, alleging that the defendants Robin S. Weingast and Robin S.Weingast & Associates, Inc., insurance brokers and consultants, marketed anInternal Revenue Code § 419 (e) Single Employer Trust Employee WelfareBenefits Plan (hereinafter the BETA Plan), to them. The defendant MassachusettsMutual Life Insurance Company issued the life insurance policies that funded the subjectBETA Plan. The defendant Designs For Finance, Inc., was the sponsor of the subjectBETA Plan. According to the complaint, the plaintiffs relied upon the defendants'representations that the insurance premiums were fully tax deductible. However, inOctober 2007, the Internal Revenue Service published a ruling that effectivelydisallowed deductions for payment of premiums under the BETA Plan. [*2]Thereafter, the plaintiffs were audited and became subjectto federal and state tax adjustments on their tax returns. Additionally, the plaintiffsalleged that, without the tax deductions, they were unable to afford the policies and wereforced to sell them at a substantial loss.
The Supreme Court properly directed the dismissal of the causes of action to recoverdamages for fraud, breach of fiduciary duty, and negligence pursuant to CPLR 3211 (a)(1). A motion to dismiss a complaint based on documentary evidence pursuant to CPLR3211 (a) (1) may be granted only if the documentary evidence submitted by the movingparty utterly refutes the factual allegations of the complaint and conclusively establishesa defense to the claims as a matter of law (see Goshen v Mutual Life Ins. Co. ofN.Y., 98 NY2d 314, 326 [2002]; Harris v Barbera, 96 AD3d 904, 905 [2012]; Paramount Transp. Sys., Inc. vLasertone Corp., 76 AD3d 519, 520 [2010]). Here, the documentary evidencesubmitted by the defendants included forms signed by or on behalf of the plaintiffs thatcontained specific disclaimer provisions, pursuant to which the plaintiffs expresslyacknowledged that the defendants were not authorized to provide tax advice, and thatthey would not rely on any such advice provided. These forms conclusively establishedthe defendants' defense to the fraud, breach of fiduciary duty, and negligence causes ofaction (see Cathy Daniels, Ltd. vWeingast, 91 AD3d 431, 433 [2012]; Jeffrey Rapaport M.D., P.A. v RobinS. Weingast & Assoc., Inc., 859 F Supp 2d 706, 716-717 [D NJ 2012];Eaves v Designs for Finance, Inc., 785 F Supp 2d 229, 249-250 [SD NY 2011];see also Danann Realty Corp. v Harris, 5 NY2d 317, 320 [1959]; Natoli v NYC Partnership Hous.Dev. Fund Co., Inc., 103 AD3d 611, 612-613 [2013]). Additionally, theSupreme Court properly directed the dismissal of the cause of action for rescission, as itwas asserted pursuant to CPLR 3002 (e) as alternative relief for the alleged fraud (see Angel v Bank ofTokyo-Mitsubishi, Ltd., 39 AD3d 368, 369-370 [2007]).
Additionally, the complaint failed to state a viable cause of action against thedefendants to recover damages for a violation of General Business Law§ 349. The elements of a cause of action to recover damages for deceptivebusiness practices under General Business Law § 349 are that the defendantengaged in a deceptive act or practice, that the challenged act or practice wasconsumer-oriented, and that the plaintiff suffered an injury as a result of the deceptive actor practice (see Stutman v Chemical Bank, 95 NY2d 24, 29 [2000]; OswegoLaborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25[1995]). Accepting the facts as alleged in the complaint as true, and according theplaintiffs the benefit of every possible favorable inference, as required on a motion todismiss a complaint pursuant to CPLR 3211 (a) (7) (see Nonnon v City of New York, 9 NY3d 825, 827 [2007];Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the conduct complained of was notconsumer-oriented, as it did not affect consumers at large (see Cathy Daniels, Ltd. vWeingast, 91 AD3d at 435; Eaves v Designs for Finance, Inc., 785 F Supp2d at 266; see also Yellow BookSales & Distrib. Co., Inc. v Hillside Van Lines, Inc., 98 AD3d 663, 665[2012]; Vescon Constr., Inc. vGerelli Ins. Agency, Inc., 97 AD3d 658, 659 [2012]).
Further, the cause of action to recover damages for unjust enrichment is a quasicontract claim and, therefore, is not viable against the defendants where, as here, theparties entered into express agreements (see Woss, LLC v 218 Eckford, LLC, 102 AD3d 860, 862[2013]; Shovak v Long Is.Commercial Bank, 50 AD3d 1118, 1120 [2008]).
The parties' remaining contentions either are without merit or need not be addressedin light of our determination. Mastro, J.P., Chambers, Lott and Roman, JJ., concur.