Elias v. Handler
| Decision Date | 20 November 1989 |
| Citation | 155 A.D.2d 583,548 N.Y.S.2d 33 |
| Parties | Moses ELIAS, Respondent, v. Emmerich HANDLER, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Cleary, Gottlieb, Steen & Hamilton, New York City (George Weisz, James W. Pharo and Gary Whittington, of counsel), for appellants.
Israel Weinstock, New York City (Melvyn L. Meer, of counsel), for respondent.
Before MANGANO, J.P., and LAWRENCE, KOOPER and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to rescind the sale of an interest in a limited partnership on the basis of fraud, the defendants appeal from an order of the Supreme Court, Kings County (Hurowitz, J.), entered June 8, 1988, which denied their motion to dismiss the complaint, inter alia, for failure to state a cause of action.
ORDERED that the order is affirmed, with costs.
The plaintiff Moses Elias and the defendant Emmerich Handler entered into a written agreement to buy certain premises known as 26 Court Street, Brooklyn, New York, sometime in December 1982. They were each to provide a portion of the down payment, with the plaintiff loaning $120,000 to Handler for his share of the down payment as per their agreement. The deal was consummated and sometime thereafter, the plaintiff allegedly sold his limited partnership interest in the realty venture to Handler. Claiming that he was induced to sell his interest at a depressed price by Handler's fraud, the plaintiff commenced this action, seeking, among other things, to rescind the sale of his interest. The defendants moved to dismiss the complaint, inter alia, for failure to state a cause of action.
For purposes of a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the plaintiff's allegations are deemed to be true and the pleadings are liberally construed (see Lynch v. Bay Ridge Obstetrical & Gynecological Assocs., 72 N.Y.2d 632, 636, 536 N.Y.S.2d 11, 532 N.E.2d 1239; Cohn v. Lionel Corp., 21 N.Y.2d 559, 562, 289 N.Y.S.2d 404, 236 N.E.2d 634). In accordance with this court's decision in Brown v. Lockwood, 76 A.D.2d 721, 432 N.Y.S.2d 186, we find that the necessary elements of a fraud cause of action have been set forth in the complaint herein. Specifically, as to the claim of actual fraud, it was alleged that Handler had made a material misrepresentation to the plaintiff that his interest in the premises could be sold for a certain price. In fact, Handler had received higher offers for that interest, but...
To continue reading
Request your trial
-
Notch View Associates v. Smith
...v. Martin, 69 U.S. (2 Wall.) 70, 89, 17 L.Ed. 732 (1864) (setting aside fraudulent contract of sale); Elias v. Handler, 155 A.D.2d 583, 584, 548 N.Y.S.2d 33, 34 (App.Div.1989) (allegations of fraud sufficient to state claim for rescission); Harlow v. La Brum, 151 N.Y. 278, 279, 45 N.E. 859,......
-
Levin v. Kitsis
...311; Iglesias v. Dazi, 253 A.D.2d 515, 516, 677 N.Y.S.2d 158; Mack v. Meier, 251 A.D.2d 298, 675 N.Y.S.2d 540; cf. Elias v. Handler, 155 A.D.2d 583, 548 N.Y.S.2d 33). Accordingly, the second cause of action to recover damages for constructive fraud should have been dismissed insofar as asse......
-
Tozzi v. Shinefield
...been offered more for the property in another offer and the prospective purchaser relies on the misrepresentation. [(Elias v. Handler, 155 A.D.2d 583, 548 N.Y.S.2d 33 (1989) (rescission of sale); Kabatchnick v. Hanover-Elm Bldg. Corp. (1952) 328 Mass. 341, 103 N.E.2d 692, 30 A.L.R.2d 918.)]......
-
Morales v. Distressed Properties, Inc.
...of action against him. ORDERED that the order is affirmed, with costs. The complaint, when liberally construed (see, Elias v. Handler, 155 A.D.2d 583, 548 N.Y.S.2d 33) and considered in light of the evidentiary material appended to it (see, Bello v. Cablevision Sys. Corp., 185 A.D.2d 262, 2......