Joseph M. Cohen v Stephen Mazoh

Cohen v Mazoh 2004 NY Slip Op 08624 [12 AD3d 296] November 23, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

Joseph M. Cohen, Appellant,
v
Stephen Mazoh et al., Respondents.

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Appeal from order, Supreme Court, New York County (Karla Moskowitz, J.), entered May 28, 2003, which granted defendants' motion to dismiss the complaint for failure to state a cause of action and to plead fraud with particularity, deemed to be an appeal from judgment, same court and Justice, entered June 10, 2003, which dismissed the complaint, and so considered, judgment unanimously modified, on the law, to reinstate the causes of action for fraud, negligent misrepresentation, unjust enrichment and promissory estoppel insofar as they pertain to the authenticity of the painting, and otherwise affirmed, without costs.

The reinstated claims were adequately set forth with requisite particularity as to the painting's authenticity (see Bernstein v Kelso & Co., 231 AD2d 314, 320 [1997]). Allegations relating to the painting's provenance, on the other hand, were not adequately supported by the facts. Furthermore, the facts alleged do not establish gross, wanton or willful fraud or other morally culpable conduct to a degree sufficiently warranting punitive damages (Borkowski v Borkowski, 39 NY2d 982 [1976]). Concur—Andrias, J.P., Sullivan, Ellerin, Lerner and Marlow, JJ.