| YDRA, LLC v Mitchell |
| 2014 NY Slip Op 09122 [123 AD3d 1113] |
| December 31, 2014 |
| Appellate Division, Second Department |
[*1]
| YDRA, LLC, Appellant, v John A. Mitchell etal., Defendants, and Paul Sklar, Respondent. |
Edelstein & Grossman, New York, N.Y. (Jonathan I. Edelstein of counsel), forappellant.
Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Robert N. Zausmerof counsel), for respondent.
In an action, inter alia, to recover damages for fraud, the plaintiff appeals from anorder of the Supreme Court, Queens County (Siegal, J.), dated November 21, 2013,which granted the motion of the defendant Paul Sklar pursuant to CPLR 3211 (a) (1) and(7) to dismiss the complaint insofar as asserted against him.
Ordered that the order is reversed, on the law, with costs, and the motion of thedefendant Paul Sklar pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaintinsofar as asserted against him is denied.
A motion pursuant to CPLR 3211 (a) (1) to dismiss based on documentary evidencemay be appropriately granted "only where the documentary evidence utterly refutesplaintiff's factual allegations, conclusively establishing a defense as a matter of law"(Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Suchmacher v MananaGrocery, 73 AD3d 1017 [2010]; Fontanetta v John Doe 1, 73 AD3d 78, 83 [2010]).
On a motion pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause ofaction, the court must accept the facts alleged in the complaint as true, accord theplaintiff the benefit of every possible favorable inference, and determine only whetherthe facts as alleged fit within any cognizable legal theory (see Goshen v Mutual LifeIns. Co. of N.Y., 98 NY2d at 326; Leon v Martinez, 84 NY2d 83, 87 [1994]).Where, as here, evidentiary material is submitted and considered on a motion pursuant toCPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, thequestion becomes whether the plaintiff has a cause of action, not whether the plaintiffhas stated one, and unless it has been shown that a material fact claimed by the plaintiffto be one is not a fact at all, and unless it can be said that no significant dispute existsregarding it, dismissal should not eventuate (see Guggenheimer v Ginzburg, 43NY2d 268, 275 [1977]).
"The elements of a cause of action [alleging] fraud require a materialmisrepresentation of a fact, knowledge of its falsity, an intent to induce reliance,justifiable reliance [*2]by the plaintiff and damages" (Eurycleia Partners, LP v Seward& Kissel, LLP, 12 NY3d 553, 559 [2009]). A corporate officer may be heldpersonally liable for a fraudulent act committed in his or her capacity as a corporateofficer provided that the officer personally participated in the misrepresentation or hadactual knowledge of it (see Marine Midland Bank v Russo Produce Co., 50NY2d 31, 44 [1980]; Buxton Mfg. Co. v Valiant Moving & Stor., 239AD2d 452, 454 [1997]; I. Towjer, Inc. v Tarran, 236 AD2d 518, 519[1997]).
As to that branch of the motion of the defendant Paul Sklar which was pursuant toCPLR 3211 (a) (1), his submissions either were not "documentary evidence" within themeaning of CPLR 3211 (a) (1) or did not utterly refute the plaintiff's factual allegations,conclusively establishing a defense as a matter of law (see Fontanetta v John Doe1, 73 AD3d at 83-86).
As to that branch of Sklar's motion which was pursuant to CPLR 3211 (a) (7), inaddressing the allegations made in the second amended complaint that he personallyparticipated in the fraud, Sklar's affidavit failed to demonstrate that these allegationswere "not . . . fact[s] at all" (Guggenheimer v Ginzburg, 43 NY2d at275).
The parties' remaining contentions are without merit.
Accordingly, the Supreme Court should have denied Sklar's motion pursuant toCPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as asserted against him.Rivera, J.P., Leventhal, Chambers and Sgroi, JJ., concur.