Callahan v. Callahan

• Decision Date: 23 April 1987
• Citation: 127 A.D.2d 298,514 N.Y.S.2d 819
• Parties: Crystal A. CALLAHAN, Respondent, v. Bradley M. CALLAHAN, Defendant, and Paul H. Wein, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 819

514 N.Y.S.2d 819

127 A.D.2d 298

Crystal A. CALLAHAN, Respondent, v. Bradley M. CALLAHAN, Defendant, and Paul H. Wein, Appellant.

Supreme Court, Appellate Division,

Third Department.

April 23, 1987.

Roche, Corrigan, McCoy & Bush (Scott W. Bush, of counsel), Albany, for appellant.

Myron J. Cohn (Carl Holsberger, Jr., of counsel), Schenectady, for respondent.

Before KANE, J.P., and CASEY, WEISS, YESAWICH and LEVINE, JJ.

WEISS, Justice.

Defendant Bradley M. Callahan (hereinafter Callahan) and plaintiff were married in February 1978. In 1981, they purchased a 16-acre parcel with 670 feet of lake frontage in the Town of Ballston, Saratoga County, as tenants by the entirety. Discord developed and they eventually separated. During the early morning hours of October 3, 1985, Callahan visited plaintiff at her apartment and proposed that they immediately enter into a separation agreement disposing of their marital property, particularly the 16-acre parcel, which at this point was improved with a residence under construction. Callahan allegedly informed plaintiff that unless she cooperated, she would receive nothing in any subsequent divorce action.

Later that morning, plaintiff accompanied Callahan to the office of his attorney, defendant Paul H. Wein. En route, Callahan ostensibly indicated that the marital dwelling was worth $45,000 and that he would purchase plaintiff's interest for $30,000. Upon their arrival at Wein's office, plaintiff was presented with, inter alia, a proposed separation agreement, a deed conveying the marital property to Callahan, a $5,000 check and a waiver-of-attorney statement. She was also served with a summons with notice of divorce. Pursuant to the terms of the separation agreement, plaintiff would receive only $21,000 for her interest in the real estate, which amount was unsecured and payable in four semiannual installments, interest free. At approximately 10:30 A.M., plaintiff signed the aforementioned documents and received a check for $5,000, representing the first property installment. Plaintiff alleges that she was later informed that the property had a minimum fair market value of $150,000. She commenced the instant action against Callahan and Wein seeking rescission of both the separation agreement and deed, and an equitable distribution of the marital property. On this appeal, we are concerned only with Supreme Court's denial of Wein's CPLR 3211(a)(7) motion to dismiss the complaint against him.

In her fifth cause of action, plaintiff essentially alleges that Wein, acting in concert with Callahan, misrepresented the value of the property and failed to disclose other pertinent information in order to induce her to release her interest in the real estate. She further alleges that she relied upon Wein's statements because of their past friendship. Accepting these allegations as true (see, Kahn v. Crames, 92 A.D.2d 634, 635, 459 N.Y.S.2d 941), we find that the fifth cause of action adequately states a cause of action to recover for fraud. "On a motion such as this the allegations in the complaint must be accepted as true, and if in any aspect upon the alleged facts plaintiff is entitled to recover, the complaint must be sustained * * * " (Matco Elec. Co. v. Plaza Del Sol Constr. Corp., 82 A.D.2d 979, 979-980, 440 N.Y.S.2d 407, citing Kober v. Kober, 16 N.Y.2d 191, 264 N.Y.S.2d 364, 211 N.E.2d 817). In addition, "the allegations are to be most liberally construed in favor of the pleader" (Matco Elec. Co. v. Plaza Del Sol Constr. Corp., supra, 82 A.D.2d p. 980, 440 N.Y.S.2d 407).

At the outset, we observe that there is no substantive tort for conspiracy in New York (see, Raymond Corp. v. Coopers & Lybrand, 105 A.D.2d 926, 482 N.Y.S.2d 377). Specific wrongful acts constituting an independent tort must be pleaded (id., at 926-927, 482 N.Y.S.2d 377; see, Callahan v. Gutowski, 111 A.D.2d 464, 465, 488 N.Y.S.2d 519). Plaintiff maintains that the complaint sufficiently sets forth the independent tort of fraud, acted upon as planned by defendants in concert. We agree. "An attorney may be held liable to third parties for wrongful acts if guilty of fraud or collusion or of a malicious or tortious act * * * " (Kahn v. Crames, supra, 92 A.D.2d p. 635, 459 N.Y.S.2d 634, citing Gifford v. Harley, 62 A.D.2d 5, 7, 404 N.Y.S.2d 405; see, Harder v. McGinn, 89 A.D.2d 732, 733, 454 N.Y.S.2d 42, affd. 58 N.Y.2d 663, 458 N.Y.S.2d 542, 444 N.E.2d 1006). To plead a cause of action for fraud, a plaintiff must allege a misrepresentation of a material existing fact, falsity, scienter, deception and injury (see, e.g., Hutchins v. Utica Mut. Ins. Co., 107 A.D.2d 871, 872, 484 N.Y.S.2d 686). Nondisclosure is tantamount to an affirmative misrepresentation where a party to a transaction is duty-bound to disclose certain pertinent information (24 N.Y.Jur., Fraud and Deceit, § 107, at 161 [1962] ). Such duty to disclose may arise where a fiduciary or confidential relationship exists or where a party has superior knowledge not available to the other (see, Young v. Keith, 112 A.D.2d 625, 627, 492 N.Y.S.2d 489; County of Westchester v. Becket Assoc., 102 A.D.2d 34, 50-51, 478 N.Y.S.2d 305, affd. 66 N.Y.2d 642, 495 N.Y.S.2d 364, 485 N.E.2d 1029; 24 N.Y.Jur., Fraud and Deceit, §§ 106-109, at 159-164 [1962] ). Here, plaintiff has alleged that Wein was personally familiar with the subject property, having visited it on several occasions, and yet still assured plaintiff that the...