Opinion
945.1 CA 19–01589
11-08-2019
Crystal MORROW, Plaintiff–Respondent, v. METLIFE INVESTORS INSURANCE COMPANY, et al., Defendants, and Juan "Jin" Zhou, Financial Services Representative and Investment Advisor, Defendant–Appellant. (Appeal No. 2.)
WOOD SMITH HENNING & BERMAN LLP, NEW YORK CITY (CHRISTOPHER J. SEUSING OF COUNSEL), FOR DEFENDANT–APPELLANT. LOUIS ROSADO, BUFFALO, FOR PLAINTIFF–RESPONDENT.
WOOD SMITH HENNING & BERMAN LLP, NEW YORK CITY (CHRISTOPHER J. SEUSING OF COUNSEL), FOR DEFENDANT–APPELLANT.
LOUIS ROSADO, BUFFALO, FOR PLAINTIFF–RESPONDENT.
PRESENT: CENTRA, J.P., NEMOYER, 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 and those parts of the motion seeking to dismiss the first, second, sixth, eighth, and ninth causes of action against defendant Juan "Jin" Zhou, Financial Services Representative and Investment Advisor, are granted.
Memorandum: In appeal No. 1, Juan "Jin" Zhou, Financial Services Representative and Investment Advisor (defendant), appeals from an order that, inter alia, denied in part the motion of defendant and MetLife Investors Insurance Company (collectively, defendants) seeking to dismiss the complaint against them on statute of limitations grounds. Following entry of that order, plaintiff filed an amended complaint. In appeal No. 2, defendant appeals from a separate order that, inter alia, denied those parts of the motion of defendants seeking to dismiss the first, second, sixth, eighth, and ninth causes of action in the amended complaint against him.
We dismiss the appeal from the order in appeal No. 1 as moot inasmuch as the amended complaint superseded the original complaint and became the only complaint in this case (see Aikens Constr. of Rome v. Simons, 284 A.D.2d 946, 947, 727 N.Y.S.2d 213 [4th Dept. 2001] ; see generally St. Lawrence Explosives Corp. v. Law Bros. Contr. Corp., 170 A.D.2d 957, 957, 566 N.Y.S.2d 127 [4th Dept. 1991] ).
With respect to appeal No. 2, we agree with defendant that Supreme Court erred in denying the motion with respect to the first, second, sixth, eighth, and ninth causes of action against defendant. We thus reverse the order insofar as appealed from.
Although defendant contends that the first and second causes of action are barred by the statute of limitations, that contention is not properly before us inasmuch as defendant did not raise it in the motion (see Lots 4 Less Stores, Inc. v. Integrated Props., Inc., 152 A.D.3d 1181, 1182, 59 N.Y.S.3d 628 [4th Dept. 2017] ). We agree with defendant, however, that the court erred in denying that part of the motion seeking to dismiss the first, second, and ninth causes of action, for negligence and gross negligence, against him because each of those causes of action depends on allegations of intentional conduct that cannot form the basis of a claim founded on negligence (see Dunn v. Brown, 261 A.D.2d 432, 432–433, 690 N.Y.S.2d 81 [2d Dept. 1999] ; Mihalakis v. Cabrini Med. Ctr. [CMC], 151 A.D.2d 345, 347, 542 N.Y.S.2d 988 [1st Dept. 1989], lv dismissed in part and denied in part 75 N.Y.2d 790, 552 N.Y.S.2d 98, 551 N.E.2d 591 [1990] ; see generally New York State Workers' Compensation Bd. v. SGRisk, LLC, 116 A.D.3d 1148, 1151, 983 N.Y.S.2d 642 [3d Dept. 2014] ).
We likewise agree with defendant that the court erred in denying that part of the motion seeking to dismiss the sixth cause of action, for conversion, against him. "A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession" ( Colavito v. New York Organ Donor Network, Inc., 8 N.Y.3d 43, 49–50, 827 N.Y.S.2d 96, 860 N.E.2d 713 [2006] ). Plaintiff failed to state a cause of action for conversion inasmuch as the conduct alleged to have been committed by defendant did not show that defendant assumed or exercised control over personal property belonging to plaintiff (see Ehrenkranz v. 58 MHR, LLC, 127 A.D.3d 918, 919, 6 N.Y.S.3d 649 [2d Dept. 2015] ).
We also agree with defendant that the court erred in denying that part of the motion seeking to dismiss the eighth cause of action, for fraud, against him. "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 Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 488, 836 N.Y.S.2d 509, 868 N.E.2d 189 [2007] ; Gallagher v. Ruzzine, 147 A.D.3d 1456, 1457, 46 N.Y.S.3d 323 [4th Dept. 2017], lv denied 29 N.Y.3d 919, 2017 WL 4051611 [2017] ). The amended complaint failed to allege a misrepresentation made by defendant, an intent on defendant's part to induce plaintiff's reliance, or reliance by plaintiff on such a misrepresentation (see Flandera v. AFA Am., Inc., 78 A.D.3d 1639, 1641, 913 N.Y.S.2d 441 [4th Dept. 2010] ; Citipostal, Inc. v. Unistar Leasing, 283 A.D.2d 916, 918–919, 724 N.Y.S.2d 555 [4th Dept. 2001] ).