Dumas argues that the standard for finding that a fraudulent omission is deliberate is "when there is a duty to disclose the information based on superior knowledge of information not available to the other party." (PL Mem. Opp. Summ. J. at 19 citing Koncelik v. Abady, 179 A.D.2d 942, 944 (N.Y.App.Div. 1992).) The Koncelik court does state that "nondisclosure is tantamount to an affirmative misrepresentation where a party to a transaction is duty-bound to disclose certain pertinent information," but only as an acknowledgment that a claim for fraudulent omission is a permutation of the common law action for fraud. Koncelik, 179 A.D.2d at 944 (quoting Callahan v. Callahan, 127 A.D.2d 298, 300 (N.Y. A.D. 1987)); Alien v. Westpoint-Pepperell, Inc., 11 F. Supp.2d 277, 284 (S.D.N.Y. 1997).

Furthermore, reasonable reliance does not require an independent inquiry by a plaintiff where reliance is based on a fiduciary relationship and the plaintiff has no reason to question the fiduciary's representations. See Frame v. Maynard, 83 A.D.3d 599, 922 N.Y.S.2d 48, 51 (2011); Koncelik v. Abady, 179 A.D.2d 942, 578 N.Y.S.2d 717, 718 (1992). Accordingly, if Plaintiffs can show at trial that a fiduciary relationship existed, and that they relied on this relationship in assenting to the formation of BRJV, their failure to hire their own attorney or otherwise investigate the BRJV documents will not render their reliance on Defendants unreasonable.

I recognize that there is an exception to this rule where a party's signature has been procured through fraud or other misconduct. Koncelik v. Abady, 179 A.D.2d 942, 944, 578 N.Y.S.2d 717 (3d Dep't 1992). However, there is no allegation that anything of the kind occurred here.

The amended complaint pleads fraud. ( Breard v Sachnoff Weaver, Ltd., 941 F2d 142; Cohen v Goodfriend, 665 F Supp 152; Securities Exch. Commn. v Frank, 388 F2d 486; Goldfine v DeEsso, 309 AD2d 895; Koncelik v Abady, 179 AD2d 942; In re Simon II Litig., 407 F3d 125; Fraternity Fund Ltd. v Beacon Hill Asset Mgt., 376 F Supp 2d 385; Calcutti v SBU, Inc., 273 F Supp 2d 488; Securities Exch. Commn. v Coffey, 493 F2d 1304; Williams v Sidley Austin Brown Wood, L.L.P., 38 AD3d 219.) II.

Next, we turn to Neroni's argument that his conduct was "covered by advisor's immunity" and therefore not actionable. It is the general rule that "attorneys, in the exercise of their proper functions as such, shall not be civilly liable for their acts when performed in good faith and for the honest purpose of protecting the interests of their clients" ( Gifford v Harley, 62 AD2d 5, 7 [internal quotation marks and citation omitted]). However, "[a]n attorney may be held liable to third parties for wrongful acts if guilty of fraud or collusion or of a malicious or tortious act" ( Kahn v Crames, 92 AD2d 634, 635; see Mills v Dulin, 192 AD2d 1001, 1003; Koncelik v Abady, 179 AD2d 942, 944). Moreover, Judiciary Law § 487 sets forth a civil cause of action that may be established by, among, other things, an attorney's intent to deceive ( see Amalfitano v Rosenberg, 12 NY3d 8, 14; Scarborough v Napoli, Kaiser Bern, LLP, 63 AD3d 1531, 1533; Singer v Whitman Ransom, 83 AD2d 862, 863).

In particular, the fifth affirmative defense set forth in the verified answer avers that the term "refinance" is "commonly" used to refer to a sale-leaseback transaction, and is a "proper" description for a "sale-leaseback" transaction. Based on the record as a whole, including McGowan's own admission that he used the term "refinance" to refer to the sale-leaseback transaction, triable issues of fact remain as to whether McGowan made such misrepresentations to mislead and confuse the plaintiffs into entering into the transaction and as to whether the plaintiffs justifiably relied upon those misrepresentations ( see Franco v English, 210 AD2d 630, 634-635; Koncelik v Abady, 179 AD2d 942, 944). Moreover, the defendants failed to establish their prima facie entitlement to judgment as a matter of law with respect to the plaintiffs' allegations of a breach of fiduciary duty.

The facts critical to the success of defendant's motion are those directed to the existence of an attorney-client relationship between defendant and plaintiffs as individuals. Defendant's motion to dismiss is predicated upon the absence of such a relationship, because an attorney will not be liable to a nonclient for acts of malpractice absent fraud, collusion, or a malicious or tortious act ( see C.K. Indus. Corp. v. C.M. Indus. Corp., 213 AD2d 846, 847; see also Conti v. Polizzotto, 243 AD2d 672; Doo v. Berger, 227 AD2d 435, 436; cf. Koncelik v. Abady, 179 AD2d 942, 944). In support of the motion to dismiss based upon documentary evidence, defendant relied upon the retainer agreement involving Griffin House Bed Breakfast, as well as additional documents establishing that all of defendant's work relating to plaintiffs was directed to the business venture and its corporate entities.

Plaintiff then commenced this action seeking rescission of the bail assignment agreement on the basis that defendant fraudulently induced her to sign the document. After defendant's motion for summary judgment dismissing the complaint for failure to state a cause of action was denied by Supreme Court, defendant appealed to this court which found that plaintiff had stated a viable claim for actual fraud (see, Koncelik v. Abady, 179 A.D.2d 942). A number of court appearances were scheduled by Supreme Court to resolve various discovery issues, including contempt motions relating to defendant's failure to comply with discovery demands and to appear for his deposition.

Thus, defendant failed to establish, at a minimum, the existence of a promise ( see generally, Scivoletti v. Marsala, 61 N.Y.2d 806, 808; Matter of Steibel, 227 A.D.2d 408, 409) or a transfer in reliance on such promise. Similarly, defendant has not demonstrated merit to his constructive fraud claim ( cf., Koncelik v. Abady, 179 A.D.2d 942). Defendant's remaining contentions have been reviewed and rejected as unpersuasive.

The trial court properly dismissed the plaintiff's complaint to the extent that the plaintiff attempted to plead a cause of action sounding in attorney malpractice and/or fraud with respect to the defendant law firm and its attorneys. The law in New York does not recognize any liability on the part of an attorney to a nonclient third party for injuries sustained as a result of an attorney's actions in representing his client absent fraud, collusion, or a malicious or tortious act ( see, Michalic v Klat, 128 A.D.2d 505, 506; see also, Deni v. Air Niagara, 190 A.D.2d 1011). In his complaint, the plaintiff failed to set forth any allegations of fact tending to bring this case into one of the exceptions to the general rule, and his complaint does not set forth any of the requisite elements of actual fraud ( see, Koncelik v. Abady, 179 A.D.2d 942, 944). We further find that the plaintiff's purported cause of action to recover damages for unjust enrichment should likewise have been dismissed. Under the facts of this case, where the plaintiff has alleged the existence of a valid, enforceable contract governing the plaintiff's alleged rights to the settlement money in question, recovery of that same money in quasi contract is precluded ( see, Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382; Metropolitan Elec. Mfg. Co. v. Herbert Constr. Co., 183 A.D.2d 758).