Opinion
2013-09869, Index No. 4372/12.
09-23-2015
VISION ACCOMPLISHED, INC., respondent, v. LOWE PROPERTIES, LLC, et al., appellants.
Lipsky Bresky & Lowe, LLP, Garden City, N.Y. (Michael Lowe of counsel), for appellants. Sahn Ward Coschignano & Baker, PLLC, Uniondale, N.Y. (Christian Browne and Jenna A. Gallagher of counsel), for respondent.
Lipsky Bresky & Lowe, LLP, Garden City, N.Y. (Michael Lowe of counsel), for appellants.
Sahn Ward Coschignano & Baker, PLLC, Uniondale, N.Y. (Christian Browne and Jenna A. Gallagher of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
Opinion
In an action to recover damages for unjust enrichment and fraud, the defendants appeal from an order of the Supreme Court, Nassau County (DeStefano, J.), dated August 2, 2013, which denied their motion for summary judgment dismissing the second cause of action, which sought to recover damages for fraud.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to recover damages for unjust enrichment and fraud. The defendants moved for summary judgment dismissing the second cause of action, which sought to recover damages for fraud, on the ground that the allegations of misrepresentation and reliance contained in the complaint were insufficient as a matter of law. The Supreme Court denied the defendants' motion.
“A motion for summary judgment may be made after issue has been joined based on CPLR 3211(a) grounds which have been asserted in the answer” (Light v. Light, 64 A.D.3d 633, 634, 883 N.Y.S.2d 553 ; see Fischer v. RWSP Realty, LLC, 53 A.D.3d 594, 595, 862 N.Y.S.2d 541 ). Here, the verified answer interposed by the defendants included, as the first affirmative defense, the contention that the complaint failed to state a cause of action. However, the defendants' contention that the allegations in the complaint were insufficient to state a cause of action sounding in fraud is without merit.
“The elements of a cause of action to recover damages for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff, and damages (see Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559, 883 N.Y.S.2d 147, 910 N.E.2d 976 ; High Tides, LLC v. DeMichele, 88 A.D.3d 954, 957, 931 N.Y.S.2d 377 ; Introna v. Huntington Learning Ctrs., Inc., 78 A.D.3d 896, 898, 911 N.Y.S.2d 442 ). Here, the allegations in the complaint were sufficient to allege a material misrepresentation of fact, since the plaintiff asserted that the defendants induced it to provide certain services based upon promises that the defendants, unbeknownst to the plaintiff, had no intention of keeping at the time those promises were made (see Channel Master Corp. v. Aluminium Ltd. Sales, 4 N.Y.2d 403, 407, 176 N.Y.S.2d 259, 151 N.E.2d 833 ; Neckles Bldrs., Inc. v. Turner, 117 A.D.3d 923, 925, 986 N.Y.S.2d 494 ; Braddock v. Braddock, 60 A.D.3d 84, 90, 871 N.Y.S.2d 68 ; cf. Lanzi v. Brooks, 43 N.Y.2d 778, 779–780, 402 N.Y.S.2d 384, 373 N.E.2d 278 ; Brown v. Lockwood, 76 A.D.2d 721, 731, 432 N.Y.S.2d 186 ). Furthermore, contrary to the defendants' contention, it cannot be said that the plaintiff's reliance on the alleged misrepresentations was unreasonable as a matter of law (see Schumaker v. Mather, 133 N.Y. 590, 596–597, 30 N.E. 755 ; Braddock v. Braddock, 60 A.D.3d at 88–89, 871 N.Y.S.2d 68 ; cf. Orlando v. Kukielka, 40 A.D.3d 829, 831, 836 N.Y.S.2d 252 ; Curran, Cooney, Penney v. Young & Koomans, Inc., 183 A.D.2d 742, 743, 583 N.Y.S.2d 478 ). Since the defendants failed to establish, prima facie, their entitlement to judgment as a matter of law, the burden never shifted to the plaintiff, and the defendants' motion was properly denied without regard to the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).