Opinion
02-21-2024
ARCO ACQUISITIONS, LLC, appellant, v. TIFFANY PLAZA, LLC, et al., respondents.
Lieb at Law, P.C., Smithtown, NY (Cheryl L. Berger of counsel), for appellant. Twomey, Latham, Shea, Kelley, Dubin & Quartararo, LLP, Riverhead, NY (Kathryn M. Dalli of counsel), for respondents.
Lieb at Law, P.C., Smithtown, NY (Cheryl L. Berger of counsel), for appellant.
Twomey, Latham, Shea, Kelley, Dubin & Quartararo, LLP, Riverhead, NY (Kathryn M. Dalli of counsel), for respondents.
JOSEPH J. MALTESE, J.P., WILLIAM G. FORD, BARRY E. WARHIT, LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for fraud, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Elizabeth H. Emerson, J.), dated November 4, 2021. The order granted the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
On October 4, 2017, pursuant to a contract of sale, the defendants Tiffany Plaza, LLC, and 1075 Farmingville, LLC, agreed to sell to the plaintiff a commercial property for the sum of $10,500,000. The sale closed on December 29, 2017. On April 21, 2021, the plaintiff commenced this action to recover damages for fraud, aiding and abetting fraud, and piercing the corporate veil. The plaintiff alleged that the defendants falsely represented that none of the tenants of the subject property were in arrears, The plaintiff contended that the defendants’ false representation affected the fair market value of the property and the plaintiff’s decision to purchase the property.
The defendants thereafter moved pursuant to CPLR 3211(a) to dismiss the complaint. The Supreme Court granted the defendants’ motion. The plaintiff appeals.
[1, 2] "Under CPLR 3211(a)(1), a dismissal is warranted only if ‘the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law’ " (Yan Ping Xu v. Van Zwienen, 212 A.D.3d 872, 874, 183 N.Y.S.3d 475, quoting Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511). "Thus, the defendant bears the burden of demonstrating that the proffered documentary evidence conclusively refutes the plaintiff’s factual allegations" (Krasnow v. Catania, 219 A.D.3d 1324, 1325, 197 N.Y.S.3d 70 [internal quotation marks omitted]).
[3] Here, the Supreme Court correctly determined that the cause of action alleging fraud was barred by the specific terms of the contract of sale (see Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 322, 184 N.Y.S.2d 599, 157 N.E.2d 597; Comora v. Franklin, 171 A.D.3d 851, 853, 97 N.Y.S.3d 734; Santostefano v. Middle Country Cent. Sch. Dist., 156 A.D.3d 926, 928, 65 N.Y.S.3d 785). The contract of sale utterly refuted the plaintiff’s factual allegations and conclusively established a defense to the complaint as a matter of law.
[4, 5] As a cause of action for aiding and abetting fraud cannot lie without the underlying fraud having been sufficiently pleaded, the Supreme Court properly dismissed the cause of action alleging aiding and abetting fraud (see Weinstein v. Levitin, 208 A.D.3d 531, 532, 173 N.Y.S.3d 290; Nabatkhorian v. Nabatkhorian, 127 A.D.3d 1043, 1043, 7 N.Y.S.3d 479).
[6, 7] As New York does not recognize a separate cause of action for piercing the corporate veil, the Supreme Court properly dismissed the third cause of action (see Olivieri Constr. Corp. v. WN Weaver St., LLC, 144 A.D.3d 765, 766, 41 N.Y.S.3d 59; DiMauro v. United, LLC, 122 A.D.3d 568, 569–570, 996 N.Y.S.2d 297).
The parties’ remaining contentions need not be reached in light of our determination.
MALTESE, J.P., FORD, WARHIT and VENTURA, JJ., concur.