Kuo Feng Corp. v. Ma

• Decision Date: 10 March 1998
• Citation: 669 N.Y.S.2d 575,248 A.D.2d 168
• Parties: , 1998 N.Y. Slip Op. 2147 KUO FENG CORPORATION, by Its Statutory Agent, Lin Shur-Pa, Plaintiff-Respondent, v. Edward MA, a/k/a Edward Yeh-Kuang Ma, et al., Defendants-Appellants, and Wu Tung-Ying, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 575

669 N.Y.S.2d 575

248 A.D.2d 168, 1998 N.Y. Slip Op. 2147

KUO FENG CORPORATION, by Its Statutory Agent, Lin Shur-Pa Plaintiff-Respondent, v. Edward MA, a/k/a Edward Yeh-Kuang Ma, et al., Defendants-Appellants and Wu Tung-Ying, et al., Defendants.

Supreme Court, Appellate Division First Department.

March 10, 1998.

Morton S. Robson, for Plaintiff-Respondent.

Robert S. Smith, Kevin Schlosser, Antonia M. Donohue, for Defendants-Appellants.

Before NARDELLI, J.P., and MAZZARELLI, ANDRIAS and SAXE, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Stuart Cohen, J.), entered February 20, 1996, which, after a nonjury trial, awarded plaintiff judgment against defendants-appellants in the principal amount of $9,800,000, unanimously affirmed, without costs. Appeal from order, same court (Karla Moskowitz, J.), entered on or about April 20, 1992, which, inter alia, denied defendant Wu's motion to dismiss the amended complaint for failure to state a cause of action, unanimously dismissed, without costs, as subsumed within the appeal from the aforesaid judgment.

We find a fair interpretation of the evidence supports the trial court's conclusions, particularly in light of the circumstance that the court's factual findings, crucial to the adjudication of this factually intricate controversy, rested in large measure upon its assessment of the various witnesses' credibility (see, Thoreson v. Penthouse International, 179 A.D.2d 29, 31, 583 N.Y.S.2d 213, affd., 80 N.Y.2d 490, 591 N.Y.S.2d 978, 606 N.E.2d 1369). Indeed, upon a review of the record, we agree with the trial court that the proof adduced against appellants made out a clear and convincing case of fraud. While it is true that none of the appellants individually committed all of the acts constituting the fraud, this is not, as appellants contend, an exculpating circumstance. It is well established that liability for fraud may be premised on knowing participation in a scheme to defraud, even if that participation does not by itself suffice to constitute the fraud (see, CPC International, Inc. v. McKesson Corp., 70 N.Y.2d 268, 286, 519 N.Y.S.2d 804, 514 N.E.2d 116; Factory Point Nat'l Bank v. Wooden Indian, Inc., 198 A.D.2d 563, 603 N.Y.S.2d 216). Here, the proof, even though largely circumstantial (see, e.g., Republic of Haiti v. Duvalier, 211 A.D.2d 379, 385, 626 N.Y.S.2d 472; Altman v. Finkel, 268 App.Div. 666, 669, 52 N.Y.S.2d 634, affd. 295 N.Y. 651, 64 N.E.2d 715; Borden, Inc. v. Spoor Behrins Campbell & Young, 828 F.Supp. 216, 224-225 [S.D.N.Y.1993] ), demonstrated in compelling...