Opinion
18 CA 20-00446
08-26-2021
DREAMCO DEVELOPMENT CORPORATION and Rosanne DiPizio, Plaintiffs-Respondents, v. EMPIRE STATE DEVELOPMENT CORPORATION, et al., Defendants, and Maria Lehman, Defendant-Appellant.
BROWN HUTCHINSON LLP, ROCHESTER (KIMBERLY J. CAMPBELL OF COUNSEL), FOR DEFENDANT-APPELLANT. LAW OFFICES OF DANIEL W. ISAACS, PLLC, MOUNT KISCO (DANIEL W. ISAACS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
BROWN HUTCHINSON LLP, ROCHESTER (KIMBERLY J. CAMPBELL OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAW OFFICES OF DANIEL W. ISAACS, PLLC, MOUNT KISCO (DANIEL W. ISAACS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is granted in its entirety and the complaint against defendant Maria Lehman is dismissed.
Memorandum: As we set forth in earlier related appeals, nonparty DiPizio Construction Company, Inc. (DCC) and defendant Erie Canal Harbor Development Corporation (Erie) entered into a construction agreement pursuant to which DCC was to provide construction services for a revitalization project along the waterfront in Buffalo ( Dreamco Dev. Corp. v. Empire State Dev. Corp. , 191 A.D.3d 1444, 142 N.Y.S.3d 688 [4th Dept. 2021] ; DiPizio Constr. Co., Inc. v. Erie Canal Harbor Dev. Corp. , 151 A.D.3d 1750, 56 N.Y.S.3d 751 [4th Dept. 2017], lv denied 30 N.Y.3d 910, 2018 WL 414702 [2018] ; DiPizio Constr. Co., Inc. v. Erie Canal Harbor Dev. Corp. , 134 A.D.3d 1418, 23 N.Y.S.3d 762 [4th Dept. 2015] ; DiPizio Constr. Co., Inc. v. Erie Canal Harbor Dev. Corp. , 120 A.D.3d 905, 991 N.Y.S.2d 683 [4th Dept. 2014] ; DiPizio Constr. Co., Inc. v. Erie Canal Harbor Dev. Corp. , 120 A.D.3d 909, 991 N.Y.S.2d 199 [4th Dept. 2014] ; DiPizio Constr. Co., Inc. v. Erie Canal Harbor Dev. Corp. , 120 A.D.3d 911, 990 N.Y.S.2d 426 [4th Dept. 2014] ). Plaintiff Dreamco Development Corporation (Dreamco), owned by plaintiff Rosanne DiPizio, was retained by DCC to provide management and consulting services and construction materials for the project. Erie subsequently terminated DCC from the project, and DCC no longer needed Dreamco's services. Plaintiffs commenced this action seeking money damages allegedly resulting from the termination. Maria Lehman (defendant) now appeals from an order insofar as it denied that part of her motion seeking to dismiss the fraud cause of action against her.
We agree with defendant that Supreme Court should have granted that part of her motion seeking to dismiss the fraud cause of action against her on the ground that it failed to state a cause of action (see CPLR 3211 [a] [7] ). "The elements of a cause of action for fraud require a material misrepresentation of fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages" ( Eurycleia Partners, LP v. Seward & Kissel, LLP , 12 N.Y.3d 553, 559, 883 N.Y.S.2d 147, 910 N.E.2d 976 [2009] ; see Morrow v. MetLife Invs. Ins. Co. , 177 A.D.3d 1288, 1289, 113 N.Y.S.3d 421 [4th Dept. 2019] ). It is also well settled "that a fraud claim requires the plaintiff to have relied upon a misrepresentation by a defendant to his or her detriment" ( Pasternack v. Laboratory Corp. of Am. Holdings , 27 N.Y.3d 817, 829, 37 N.Y.S.3d 750, 59 N.E.3d 485 [2016], rearg denied 28 N.Y.3d 956, 38 N.Y.S.3d 525, 60 N.E.3d 421 [2016] ; see Warren v. Forest Lawn Cemetery & Mausoleum , 222 A.D.2d 1059, 1059, 635 N.Y.S.2d 874 [4th Dept. 1995] ).
Here, the complaint does not set forth any material misrepresentations that defendant allegedly made to plaintiffs (see Lee Dodge, Inc. v. Sovereign Bank, N.A. , 148 A.D.3d 1007, 1008, 51 N.Y.S.3d 531 [2d Dept. 2017] ; Weinstein v. CohnReznick, LLP , 144 A.D.3d 1140, 1141, 43 N.Y.S.3d 387 [2d Dept. 2016] ; cf. Pike Co., Inc. v. Jersen Constr. Group, LLC , 147 A.D.3d 1553, 1556, 47 N.Y.S.3d 579 [4th Dept. 2017] ), nor does it adequately allege that defendant made any misrepresentations to third parties "for the purpose of being communicated to ... plaintiff[s] in order to induce [plaintiffs’] reliance thereon or that the[ ] misrepresentations were relayed to ... plaintiff[s], who then relied upon them" ( Robles v. Patel , 165 A.D.3d 858, 860, 86 N.Y.S.3d 186 [2d Dept. 2018] ; see New York Tile Wholesale Corp. v. Thomas Fatato Realty Corp. , 153 A.D.3d 1351, 1353-1354, 61 N.Y.S.3d 136 [2d Dept. 2017] ).