| SV Vernon 43, LLC v Malik |
| 2016 NY Slip Op 02642 [138 AD3d 730] |
| April 6, 2016 |
| Appellate Division, Second Department |
[*1]
| SV Vernon 43, LLC,Respondent, v Kanwarjeet Malik et al., Defendants, and Yariv Katz,Appellant. |
Podvey, Meanor, Catenacci, Hildner Cocoziello & Chattman, P.C., New York,NY (Wendy B. Shepps of counsel), for appellant.
Solomon & Siris, P.C., Garden City, NY (Bill Tsevis of counsel), forrespondent.
In an action, inter alia, to recover damages for fraud and conversion, the defendantYariv Katz appeals, as limited by his brief, from so much of an order of the SupremeCourt, Nassau County (Sher, J.), entered March 10, 2015, as denied those branches of hismotion which were pursuant to CPLR 3013 and 3211 (a) (1) and (7) to dismiss thecomplaint insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
On September 17, 2013, the plaintiff entered into a real estate transaction withsomeone purporting to be Madie B. McCarter, the record owner of certain real propertyknown as 43 Vernon Avenue, in Brooklyn (hereinafter the property), pursuant to which aseller deeded the property to the plaintiff. The seller was represented by the defendantYariv Katz.
Approximately one month later, Madie B. McCarter, a resident of North Carolina,commenced an action against the plaintiff, alleging that the September 17, 2013, deedwas a forgery, and seeking a declaration that the deed was null and void. The plaintiffthen commenced this action against Katz and others. The complaint interposed causes ofaction alleging conversion, money had and received, unjust enrichment, and aiding andabetting fraud against Katz.
Prior to serving an answer, Katz moved, inter alia, pursuant to CPLR 3013 and 3211(a) (1) and (7) to dismiss the complaint insofar as asserted against him. The SupremeCourt denied those branches of his motion, and Katz appeals.
"A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) will be granted onlyif the documentary evidence submitted by the defendant utterly refutes the factualallegations of the complaint and conclusively establishes a defense to the claims as amatter of law" (Bodden vKean, 86 AD3d 524, 526 [2011]; see Goshen v Mutual Life Ins. Co. ofN.Y., 98 NY2d 314, 326 [2002]). Here, contrary to Katz's contention, thedocumentary evidence he submitted was insufficient to utterly refute either the existenceof fraud, Katz's knowledge thereof, or his substantial assistance in the achievement of[*2]the alleged fraud. Accordingly, the Supreme Courtdid not err in denying that branch of Katz's motion which was pursuant to CPLR 3211(a) (1) to dismiss the cause of action to recover damages for aiding and abetting fraud (see Ginsburg Dev. Cos., LLC vCarbone, 85 AD3d 1110, 1111 [2011]).
On a motion pursuant to CPLR 3211 (a) (7) and 3013 to dismiss a complaint forfailure to state a cause of action, "the court must afford the complaint a liberalconstruction, accept the facts as alleged in the complaint as true, accord plaintiffs thebenefit of every possible favorable inference, and determine only whether the facts asalleged fit within any cognizable legal theory. The plaintiff's ultimate ability to provethose allegations is not relevant" (Nouveau El. Indus., Inc. v Glendale Condominium Town &Tower Corp., 107 AD3d 965, 966 [2013] [citations and internal quotation marksomitted]). Applying the above standard, the Supreme Court properly determined that thecomplaint sufficiently pleads causes of action against Katz to recover damages forconversion, money had and received, and unjust enrichment (see Comprehensive MentalAssessment & Med. Care, P.C. v Gusrae Kaplan Nusbaum, PLLC, 130 AD3d670, 671-672 [2015]; Center for Rehabilitation & Nursing at Birchwood, LLC v S& L Birchwood, LLC, 92 AD3d 711, 713 [2012]).
Katz's remaining contention is without merit. Rivera, J.P., Dillon, Chambers andDickerson, JJ., concur.