Opinion
July 12, 1985
Appeal from the Supreme Court, Onondaga County, Lynch, J.
Present — Hancock, Jr., J.P., Callahan, Denman, Green and Schnepp, JJ.
Order unanimously affirmed, with costs. Memorandum: Special Term properly dismissed the counterclaim interposed by defendants CIS Leasing Corp. and CIS Equipment Leasing Corp. (CIS) against International Playtex, Inc. (Playtex) and The First National Bank of Chicago (Bank). The counterclaim fails to state a cause of action for fraud and deceit because CIS has not alleged that Playtex, in concert with the Bank, made any misrepresentation of a material fact ( see, CPLR 3016 [b]; Jo Ann Homes v. Dworetz, 25 N.Y.2d 112, 119; Brooks Agency v. S.W.S. Constr., 100 A.D.2d 740, 741). CIS's reliance on Verplanck v. Van Buren ( 76 N.Y. 247) is misplaced. Verplanck does not create a cause of action for fraudulent use of legal proceedings but holds only that a cause of action for fraud and deceit will lie, even though perjury is present, where the perjury is merely a means to the accomplishment of a larger fraudulent scheme ( Newin Corp. v Hartford Acc. Indem. Co., 37 N.Y.2d 211, 217).