Dix Ave. Props., LLC v Lazarescu
Annotate this CaseDecided on May 19, 2015
City Court of Glens Falls
Dix Avenue Properties, LLC, SCHERMERHORN RESIDENTIAL HOLDINGS, L.P., its sole member SCHERMERHORN MANAGEMENT, INC., its general partner doing business as SCHERMERHORN REAL ESTATE HOLDINGS, Plaintiffs,
against
Ionut A. Lazarescu and JACQUELINE M. GRECO, Defendants.
0291-14
Gary C. Hobbs, J.
On August 1, 2012, the defendants executed a residential lease agreement renting the property located at 8C Deer Run Drive, Hudson Falls, New York. The term of the lease agreement was from August 1, 2012 to July 31, 2013. The Plaintiffs allege that the defendants breached the lease agreement by vacating the premises, without notice, on April 1, 2013.
On April 15, 2015, the Plaintiffs commenced the present action seeking damages in the amount of $3864.34 for the Defendants' alleged breach of contract by filing its summons and complaint with this Court. The Defendants timely answered the Plaintiffs' summons and complaint.
In the Defendants' Answer to the Plaintiffs' Complaint, the Defendants interposed a counter-claim alleging fraud in the inducement of the lease agreement. Here, the Defendants' counter-claim alleges that prior to signing the lease, the Defendants made it known to the Plaintiffs that they would be purchasing a puppy in the near future and that the Defendants needed to be able to harbor a puppy, if they leased the premises. The Defendants further allege that the Plaintiffs represented to the Defendants that having a puppy would not be an issue, and that pets are permitted provided they obtained prior written approval of the Plaintiffs. The Defendants further allege that a "Pet Agreement" was supposed to have been attached and included as a schedule to the lease agreement, but was not attached by the Plaintiffs. The Defendants assert that, in reliance on these representations, the Defendants entered into the lease agreement with the Plaintiffs.
In March of 2013, the Defendants submitted a pet application to the Plaintiffs seeking to house their new puppy. The Defendants assert that their pet application was denied because all puppies [i.e.; dogs under one year of age] are prohibited from being kept on any part of the Plaintiffs' premises. The Defendants further allege that, after submitting their pet application, they learned that all types of dogs are prohibited from the specific unit rented to the Defendants.
On March 28, 2013, the Defendants submitted their notice to vacate the premises. The Defendants' counter-claim seeks damages in the amount of $3,160.00.
The Plaintiffs have moved for partial summary judgment, pursuant to CPLR 3212, [*2]seeking an order of this Court dismissing the Defendants' counter-claim. Here, the Plaintiffs assert that the Defendants' counter-claim is facially insufficient because: a) it fails to provide specific details of the Plaintiffs' alleged misrepresentations, who made those representations, when the representations were made and to whom the representations were made; b) that any alleged representation were merely a statement of future intention, which is not actionable as fraud, absent proof of an intent to deceive; c) the lease agreement specifically states that "No Pets" are allowed; and d) the Defendants' counter-claim fails to plead that the Defendants justifiably relied on any representations allegedly made by the Plaintiffs.
In response to the Plaintiffs' motion, the Defendants assert that they have sufficiently plead their counter-claim for fraud and that there are issues of fact that preclude the granting of a motion for summary judgment.
Standard of Review
The standards for summary judgment are well-settled. The movant must tender evidence, by proof in admissible form, to establish that there is no genuine issue of a material fact, and the moving party is, therefore, entitled to judgment as a matter of law. CPLR 3212(b); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Alvarez v. Prospect Hosp., 68 NY2d 320 (1986).If this initial burden has not been met, the motion must be denied without regard to the sufficiency of opposing papers. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). However, once this initial burden has been met, the burden shifts to the party opposing the motion to submit evidentiary proof in admissible form sufficient to create material issues of fact requiring a trial. CPLR 3212(b); Zuckerman, 49 NY2d at 562. Mere conclusions or unsubstantiated allegations or assertions are insufficient. Zuckerman, 49 NY2d at 562.
When considering a summary judgment motion, the court must view the evidence in the light most favorable to the opponent of the motion. Vega v. Restani Constr. Corp., 18 NY3d 499, 503 (2012). Where, as here, the motion attacks the sufficiency of the pleadings, the court must afford a "liberal construction" to the pleadings, and accept the facts as alleged in the complaint as true, and accord the benefit of every possible favorable inference" from the facts stated. Leon v Martinez, 84 NY2d 83, 87 (1994)(citation omitted); Morone v Morone, 50 NY2d 481, 484 (1980).
Defendants' Claim of Fraud in the Inducement
Generally, in a claim for fraudulent misrepresentation, the Respondent must allege "a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury." Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178 (2011), quoting, Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 (1996); citing, Channel Master Corp. v Aluminium Ltd. Sales, 4 NY2d 403, 406-407 (1958).
Where the claim is based on a fraudulent omission, the pleading must allege that the Plaintiffs owed a fiduciary duty to the Defendants. P.T. Bank Cent. Asia, NY Branch v ABN AMRO Bank N.V., 301 AD2d 373, 376 (1st Dept 2003)("A cause of action for fraudulent concealment requires, in addition to the four foregoing elements (of fraudulent misrepresentation), an allegation that the defendant had a duty to disclose material information [*3]and that it failed to do so.").
CPLR 3016(b) requires that the elements of fraud be pleaded in detail. See: Caniglia v Chicago Tribune-New York News Syndicate, Inc., 204 AD2d 233 (1st Dept 1994); Fink v Citizens Mtg. Banking Ltd., 148 AD2d 578 (2d Dept 1989). To survive a motion to dismiss, the complaint must make factual allegations sufficient to support each element of a cause of action for fraud. See: Kaufman v Cohen, 307 AD2d 113 (1st Dept 2003). Bare allegations of fraud without allegations of the details constituting the wrong are insufficient. Gervasio v DiNapoli, 126 AD2d 515 (2d Dept 1987).
A claim of fraud is sufficiently plead where the pleading sets forth the time and place of the alleged misrepresentations and who made them. Orchid Const. Corp. v. Gottbetter, 89 AD3d 708, 932 N.Y.S.2d 100 (2d Dept. 2011)(Fraud claim dismissed based on the plaintiff's failure to set forth the time or place of the defendant's alleged misrepresentation); Amodio v. Patel, 2012 WL 10007974, *1+ (Trial Order) (N.Y.Sup.Ct. May 24, 2012)(fraud claim dismissed on failure to allege the time, place and person that made the misrepresentation); Eastman Kodak Co. v Roopak Enters., 202 AD2d 220, 222 (1st Dept 1994)(dismissal of counterclaim warranted where "defendant alleged neither the time nor the place of the purported misrepresentations nor which employee of the plaintiff purportedly made them."); Friedman v. Anderson, 23 AD3d 163 (1st Dept. 2005)(A plaintiff seeking to recover in fraud must set forth specific and detailed factual allegations that the defendant personally participated in, or had knowledge of any alleged fraud); Soltz v. Pirrone, 2007 WL 7275977, *7 (Trial Order) (N.Y.Sup.Ct. Jan 19, 2007)(At a minimum, a plaintiff is required to set forth the time and place of the purported misrepresentations and who made them).
Here, the Defendants' counter-claim does sufficiently allege the details of both a factual misrepresentation [i.e.; that the Defendants could house a puppy upon written consent, where the Plaintiffs prohibit the housing of all puppies within their entire property] and a fraudulent concealment [i.e.; failing to advise the Defendants that all dogs were prohibited from the particular unit rented to the Defendants, after they told the Plaintiffs that they were getting a puppy]. However, the Defendants' counter-claim fails to identify the time and place of the alleged misrepresentations or the employee of the defendant who allegedly made them.
As a result, the Defendants' counter-claim is facially insufficient. CPLR 3016(b). The Plaintiffs' motion for summary judgment is granted to the extent that the Defendants' first counter-claim is dismissed, without prejudice. The remaining issues raised by the Plaintiff have been reviewed and are found to be without merit.
Dated: May 19, 2015
at Glens Falls, New YorkHon. Gary C. Hobbs
May 19, 2015
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