The fact that an attorney prepares legal documents which arise out of an alleged breach of fiduciary duty does not constitute the "substantial assistance" required by law (Roni, LLC v. Arfa, 72 A.D.3d 413, 1st Dept., 2010, aff'd 15 N.Y.3d 826 (2010).
(Defs.' Opp'n 12). See In re Sharp Int'l Corp., 403 F.3d 43, 47-53 (2d Cir. 2005) ("Under Kaufman, a company in a position to thwart or expose a breach of fiduciary duty may protect its interests by doing neither, sitting tight, and being quiet."); Roni LLC v. Arfa, 897 N.Y.S.2d 421, 422 (App. Div. 2010) (holding that proof of "activities which are part of ordinary real estate lawyering" were not enough to state "a cause of action for aiding and abetting" a breach of fiduciary duty). That may be so, but Plaintiff alleges more than that.
Plaintiffs' allegations here fail because they merely assert that Allergan assisted in developing drugs—the precise activities one would expect from a pharmaceutical company such as Allergan. See also Roni LLC v. Arfa, 72 A.D.3d 413, 413–14, 897 N.Y.S.2d 421 (1st Dep't), aff'd, 15 N.Y.3d 826, 909 N.Y.S.2d 1, 935 N.E.2d 791 (2010) (dismissing the aiding and abetting claim because, “[a]t most, the documentary evidence indicates that the attorney defendants structured and organized entities that acted as the brokers on the property acquisitions and collected commissions—activities which are part of ordinary real estate lawyering”). Second, unless an aider and abettor owes a fiduciary duty directly to the plaintiff—a fact that Plaintiffs here have not pleaded and cannot plead—the “substantial assistance” necessary for an aiding and abetting claim requires affirmative acts to assist the breach or to help conceal the breach; mere inaction is insufficient.
Once again, the Complaint fails to forth facts underlying the allegation that White knew of a fraud or his participation in one, or supporting the idea that he knew how his assistance was supporting the perpetration of a fraud—a matter that is particularly challenging based on the delivery of legal services.See Roni LLC v. Arfa, 72 A.D.3d 413, 414, 897 N.Y.S.2d 421, 422 (1st Dep't 2010), aff'd, 15 N.Y.3d 826, 935 N.E.2d 791 (2010) ("[T]he allegation that the attorney defendants structured the transactions at issue does not, without more, give rise to a reasonable inference that such professionals were aware" of the fraudulent circumstances surrounding the transactions.); cf. Eurycleia Partners, LP v Seward & Kissel, LLP, 12 N.Y.3d 553, 559-62, 883 N.Y.S.2d 147, 150-152, 910 N.E.2d 976, 979-981 (2009) (affirming dismissal of complaint on motion based on insufficient factual allegations that law firm had actual knowledge of fraud).
In re Bayou Hedge Funds Inv. Litig., 472 F. Supp. 2d at 533 (citing to National Westminster Bank USA v. Weksel, 124 A.D.2d 144, 146-47 (1st Dep't 1987). See also Roni LLC v. Arfa, 72 A.D.3d 413, 414 (1st Dep't 2010) ("Simply put, the allegation that the Attorney Defendants structured the transactions at issue does not, without more, give rise to a reasonable inference that such professionals were aware" of the tort), aff'd, 15 N.Y.2d 826 (2010) ("conclusory pleadings do not give rise to inference that attorney defendants knowingly participated" in tortious scheme).
Decided September 8, 2011. Reported below, 74 AD3d 442; 72 AD3d 413. Motion by Larry E. Ribstein for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and 19 copies filed within seven days.
RONI LLC, et al., Appellants,v.Rachel L. ARFA, et al., Respondents.Reported below, 74 A.D.3d 442, 903 N.Y.S.2d 352; 72 A.D.3d 413, 897 N.Y.S.2d 421. Motion by Larry E. Ribstein for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and 19 copies filed within seven days.
The Appellate Division concluded that, at most, the documentary evidence indicated that the attorney defendants structured and organized entities that acted as the brokers on the property acquisitions and collected commissions — activities which were part of ordinary real estate lawyering. Roni LLC v Arfa, 72 AD3d 413, affirmed. Balber Pickard Maldonado Van Der Tuin, PC, New York City ( John Van Der Tuin of counsel), for appellants.
Defendant was not liable for fraudulent concealment because it lacked a duty to disclose the overvaluation and illiquidity of the investment assets (see Dembeck v. 220 Central Park S., LLC, 33 A.D.3d 491, 492, 823 N.Y.S.2d 45 [1st Dept.2006] ). It was neither a fiduciary nor possessed of special knowledge in a direct transaction with plaintiff (see Matter of Merkin v. Berman, 123 A.D.3d 523, 524, 1 N.Y.S.3d 21 [1st Dept.2014] ).Plaintiff failed to raise an issue of fact by submitting evidence showing that defendant knew it was structuring the transaction to plaintiff's detriment in order to benefit the non-party primary wrongdoer (compare Yuko Ito v. Suzuki, 57 A.D.3d 205, 208, 869 N.Y.S.2d 28 [1st Dept.2008] with Roni LLC v. Arfa, 72 A.D.3d 413, 897 N.Y.S.2d 421 [1st Dept.2010], affd. 15 N.Y.3d 826, 909 N.Y.S.2d 1, 935 N.E.2d 791 [2010] ). To the extent that the alleged assistance provided to the primary wrongdoer consisted of inaction, it was insufficient to support the aiding and abetting claims (see Lumen at White Plains, LLC v. Stern, 135 A.D.3d 600, 24 N.Y.S.3d 46 [1st Dept.2016] ). Because substantial assistance and actual knowledge are both essential elements of aiding and abetting claims, it is unnecessary to address plaintiff's argument that "turning a blind eye" amounts to the requisite actual knowledge, rather than constructive knowledge.
Indeed, actual knowledge of the breach of the duty is required, and constructive knowledge will not suffice (Brasseur v Speranza, 21 AD3d 297, 299 [1st Dept 2005]). Further, a plaintiff must plead this cause of action with particularity; conclusory allegations are insufficient (see CPLR 3016[b]; Front, Inc. v Khalil, 103 AD3d 481, 483 [1st Dept 2013], affd 24 NY3d 713 [2015]; Roni LLC v Arfa, 72 AD3d 413, 413-414 [1st Dept 2010], affd 15 NY2d 826 [2010]).