Bannister v Agard
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Bannister v Agard 2014 NY Slip Op 33499(U) June 12, 2014 Supreme Court, Kings County Docket Number: 11564/13 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] 11564/2013 Order did 1012114 Page 33 of 65 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: PART 16 -----------------------------------------x GARNER BANNISTER, Plaintiff, Index No. 11564/13 - against PATRICIA AGARD, K&DZ CORP. and BUCKINGHAM D~VELOPMENT CORP., Defendants, June 12, 2014 ---x PRESENT; HON. LEON RUCHELSMAN The plaintiff seeks to renew a decision of the court dated January 14, go14 which granted the motion of defendants K&DZ Corp., and Buckingham Development Corp., that sought dismissal of, specifically, the fraud cause of action. oppose the motion. The defendants After reviewing the arguments of all parties, this court n~w makes the following determination. Background As recorded in prior decisions this lawsuit concerns premises located at 18 Buckingham Road, Brooklyn, New York 11226. The property was originally owned by defendant Patricia Agard. On or about September 7, 2010 plaintiff entered into a Sale of Agreement to' purchase the premises for a price of five hundred thousand dol·lars ( $500, 000) . At a later date the defendants K&DZ & Buckingham purchased the premises from defendant Agard for five hundred and ninety thousand dollars ($590,000) and recorded a P!irted. 412312015 [* 2] Page34 of 65 1156412013 Order did 1012114 deed as the owners of the premises. The plaintiff amended the complaint alleging specific fraud against K&DZ Corp. and Buckingham Development Corp. The court dismissed that cause of action holding that, essentially, there was no evidence the d~fendant's committed any fraud. The plaintiff has now moved seeking to renew that determination. They present new evidence in the form of an affidavit from the nephew of defendant Agard, Lloyd Kidd, who states that the defendants knew of the contract between Agard and the plaintiff. Thus, argues plaintiff, evidence of the existence of possible fraud on the part of the defendants has been presented. Conclusions of Law It is true that generally, a motion to renew must contain evidence that existed at the time the original motion was filed but was unknown to the moving party (Brooklyn Welding Corp., v. Chin, 236 AD2d 392, 653 NYS2d 631 [2d Dept., 1997]). However, that rule has been defined as 'flexible' and a party may file a motion to renew even if the evidence was known at the time of the original motion provided the party offers a reasonable explanation why the additional facts were not included within the original motion (Progressive Northeastern Insurance Company v, Frenkel, 8 AD3d 390, 777 NYS2d 652 (2d Dept., 2004]). 2 Printed: 4/23/2015 [* 3] 1156412013Orderdtd1012114 Page 35 of 65 In this case explanation offered is that attempts were made to locate individuals with knowledge of the alleged transactions and that at this date Mr. Kidd was located. Even if that explanation is deemed acceptable it does not change the ultimate conclusion reached in the earlier decision that no fraud has been adequately alleged against the corporate defendants. First, the corporate defendants dispute that Kidd ever spoke to a representative of their companies and that indeed no such individual described by Kidd ever worked for them. More importantly, even if true that such a conversation took place and the. corporate defendants might have been aware of the existence of a contract between Plaintiff and Agard, Kidd's affidavit does not establish any collusion at all. As noted in the prior decision the plaintiff's chief and in fact only claims for fraud can be directed toward Agard. that conclusion. Kidd's affidavit does not alter It does not establish that the actions of the corporate defendants were done specifically to defraud the plaintiff. Rather, the affidavit, if true, merely establishes that the corporate defendants were aware that an unrecorded contract at one point existed between Agard and the plaintiff. The affidavit does not establish the corporate defendants acted with any improper motives toward the plaintiff in any way that alleges fraud. 3 Printed. 412312015 [* 4] 1156412013Orderdtd1012114 Page 36 of 65 As noted, the allegations of .fraud properly can only attach to Agard. Therefore, based on the foregoing, the motion seeking to renew the earlier decision is denied. Sp ordered. ENTER: DATED: June 12, 2014 Brooklyn N.Y. Hon. Leon Ruchelsman JSC 4 Printed: 4/2312015
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