Dembeck v. 220 Central Park South, LLC, 9327.
Decision Date | 24 October 2006 |
Docket Number | 9327A.,9327. |
Citation | 823 N.Y.S.2d 45,2006 NY Slip Op 07609,33 A.D.3d 491 |
Parties | LOUISE E. DEMBECK, Appellant, v. 220 CENTRAL PARK SOUTH, LLC, Respondent. |
Court | New York Supreme Court — Appellate Division |
Plaintiff, a former tenant of a building owned by defendant, sought compensatory and punitive damages for, in part, the landlord's allegedly fraudulent concealment in misleading her to believe she was renting an apartment in a luxury, full-service building with two functioning passenger elevators, plus another service/freight elevator, when in fact the 21-story building had only one passenger elevator with a history of frequent breakdowns. Defendant moved successfully for partial summary judgment dismissing, inter alia, the fraud claims.
The motion court properly declined to modify its prior ruling. To make a prima facie claim of fraud, the complaint must allege misrepresentation or concealment of a material fact, falsity, scienter on the part of the wrongdoer, justifiable reliance and resulting injury (see Small v Lorillard Tobacco Co., 94 NY2d 43, 57 [1999]). Although a cause of action for fraud may be predicated on acts of concealment, there must first be proven a duty to disclose material information (see Jana L. v West 129th St. Realty Corp., 22 AD3d 274, 277 [2005]; Kaufman v Cohen, 307 AD2d 113, 119-120 [2003]). When one party is under a duty to act for, or give advice for the benefit of, another on matters within the scope of their relationship, a fiduciary relationship is created (see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). Here, plaintiff failed to demonstrate such a relationship requiring any duty of disclosure. A fiduciary relationship does not exist between parties engaged in an arm's length business transaction (see id. at 19-20), which is normally the situation between landlord and tenant (see Industrial Risk Insurers v Ernst, 224 AD2d 389, 390 [1996]; Ja-Mo Assoc. v 56 Fulton St. Garage Corp., 30 AD2d 287,...
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...such as the Loan or Settlement Agreement have no confidential relationship under New York law. Dembeck v. 220 Cent. Park S., LLC , 33 A.D.3d 491, 823 N.Y.S.2d 45, 47 (1st Dep't 2006). Plaintiffs, though, hope to get around this rule by pointing out that Wells Fargo at various points served ......
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...fact, falsity, scienter on the part of the wrongdoer, justifiable reliance and resulting injury ( see Dembeck v. 220 Cent. Park S., LLC, 33 A.D.3d 491, 492, 823 N.Y.S.2d 45 [1st Dept.2006] ). Even in the absence of any affirmative misrepresentation or any fiduciary obligation, a party may b......
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