Eggert v GCD Rec. Studios

Eggert v GCD Rec. Studios 2011 NY Slip Op 08792 Decided on December 6, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 6, 2011
Mazzarelli, J.P., Friedman, Catterson, Manzanet-Daniels, Román, JJ.
4225 11541/07

[*1]Paul Eggert, Plaintiff-Appellant,

v

GCD Recording Studios, etc., et al., Defendants, Juan Perez, Defendant-Respondent.




McCabe & Associates, New York (Gerard McCabe of
counsel), for appellant.
Wilk Auslander LLP, New York (Helen A. Rella of counsel),
for respondent.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered February 13, 2009, which granted defendant Perez's motion to dismiss the second amended complaint as against him, unanimously reversed, on the law, without costs, and the motion denied.

The motion court improperly determined that the cause of action alleging fraud as against Perez was not pleaded with sufficient particularity under CPLR 3016(b). The second amended complaint cured the initial infirmities identified by the court on a prior motion by alleging that Perez, in seeking to persuade plaintiff to invest in defendant GCD, told plaintiff that he "was an active participant in GCD," an assertion allegedly false when made, and that based on that representation plaintiff agreed to loan money to GCD. Accordingly, plaintiff has alleged facts "sufficient to permit a reasonable inference of [fraud]" against Perez (Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492 [2008]).

Plaintiff's belated compliance with the stipulation so ordered by this Court on February 2, 2010 and failure to comply with the stipulation filed with this Court on April 19, 2010 do not constitute "frivolous conduct" for the purpose of imposing sanctions under 22 NYCRR 130-1.1. Although counsel's conduct was less than punctilious, it did not constitute willful delay, harassment, or intent to maliciously injure.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 6, 2011 [*2]

CLERK