| Bannister v Agard |
| 2015 NY Slip Op 01408 [125 AD3d 797] |
| February 18, 2015 |
| Appellate Division, Second Department |
[*1]
| Garner Bannister, Appellant, v Patricia Agard,Defendant, and K & DZ Corp. et al., Respondents. |
Horwitz & Zim Law Group, P.C., New York, N.Y. (Eric M. Zim of counsel),for appellant.
Gregg Star, Woodmere, N.Y., for respondents.
In an action, inter alia, to recover damages for breach of contract and fraud, theplaintiff appeals, as limited by his notice of appeal and brief, from so much of an order ofthe Supreme Court, Kings County (Ruchelsman, J.), dated January 14, 2014, as grantedthat branch of the motion of the defendants K & DZ Corp. and BuckinghamDevelopment Corp. which was pursuant to CPLR 3211 (a) (7) to dismiss the fifth causeof action in the amended complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
In September 2010, the plaintiff entered into a sales agreement (hereafter theagreement) to purchase certain real property from the defendant Patricia Agard. Theagreement provided that the plaintiff would pay a deposit of $40,000 to Agard, to be heldin escrow pending the closing, and that the closing was to take place no later than July2011. According to the plaintiff, because the subject property was in a dilapidatedcondition, he and Agard agreed that the plaintiff, who owns a construction company,would renovate the property and, once the renovations were complete, the plaintiff wouldapply for and obtain a mortgage loan, and the closing would follow. Agard allegedlyagreed not to sell the property to another buyer once the contract was finalized and therenovations had commenced. The plaintiff has allegedly expended in excess of $100,000performing such renovations.
In October 2012, the defendants K & DZ Corp. and Buckingham DevelopmentCorp. (hereinafter together the corporate defendants), as joint venture partners, purchasedthe subject property from Agard for $590,000 and recorded a deed as the new owners ofthe property. Thereafter, the plaintiff commenced this action against Agard and thecorporate defendants, and subsequently served an amended complaint asserting causes ofaction to recover damages, among other things, for fraud and collusion, as well as inquantum meruit, against both the corporate defendants and Agard. The pleadings allegethat the corporate defendants colluded with Agard to fraudulently conceal from theplaintiff, to his detriment, their purchase of the property from Agard. The corporatedefendants moved, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss the amended[*2]complaint insofar as against them on the ground thatit failed to state a cause of action, and the Supreme Court, inter alia, granted thecorporate defendants' motion with respect to the fifth cause of action, which allegedfraud/fraudulent concealment and collusion.
To properly plead a cause of action for fraud, a plaintiff must allege all of thefollowing requisite elements: (1) the defendant made a misrepresentation or a materialomission of fact which was false and which the defendant knew to be false; (2) themisrepresentation was made for the purpose of inducing the plaintiff to rely upon it; (3)the plaintiff justifiably relied on the misrepresentation or material omission; and (4)injury (see Northeast SteelProds., Inc. v John Little Designs, Inc., 80 AD3d 585, 585 [2011]; E.B. v Liberation Publs., 7AD3d 566, 567 [2004]; Shao v 39 Coll. Point Corp., 309 AD2d 850, 851[2003]). To sustain a cause of action for fraudulent concealment, the plaintiff mustfurther allege a fifth element, namely, that the defendant had a duty to disclose thematerial information (see E.B. v Liberation Publs., 7 AD3d at 567; P.T. BankCent. Asia, N.Y. Branch v ABN AMRO Bank N.V., 301 AD2d 373, 376[2003]).
Affording the amended complaint a liberal construction, accepting the facts allegedtherein to be true, and granting the plaintiff the benefit of every possible favorableinference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the amendedcomplaint, as augmented by the plaintiff's affidavits submitted in opposition to themotion to dismiss (see Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]),failed to plead the requisite elements of fraud as against the corporate defendants.Specifically, the pleading and affidavits do not allege a basis for imposing a duty on thecorporate defendants to disclose to the plaintiff their intent to purchase the subjectproperty. Accordingly, the Supreme Court properly granted that branch of the corporatedefendants' motion which was to dismiss so much of the fifth cause of action as allegedfraud/fraudulent concealment in the amended complaint insofar as asserted against them.Because the plaintiff failed to plead the requisite elements of fraud, the Supreme Courtproperly determined that so much of the fifth cause of action as alleged collusion wassubject to dismissal (see Alexander & Alexander of N.Y. v Fritzen, 68NY2d 968, 969 [1986]; Faulkner v City of Yonkers, 105 AD3d 899, 900 [2013]).Moreover, the amended complaint failed to plead collusion because it lacks the necessaryfactual allegations that the corporate defendants and Agard were part of a commonscheme or plan to defraud the plaintiff, or otherwise aided and abetted each other in thecommission of fraud (see Agostini v Sobol, 304 AD2d 395, 395-396[2003]).
The plaintiff's remaining contentions are either not properly before the Court orwithout merit. Dillon, J.P., Chambers, Duffy and Barros, JJ., concur.