SV Vernon 43, LLC v. Malik

• Decision Date: 06 April 2016
• Docket Number: 2015-06308, Index No. 5687/14.
• Citation: 2016 N.Y. Slip Op. 02642,30 N.Y.S.3d 136,138 A.D.3d 730
• Parties: SV VERNON 43, LLC, respondent, v. Kanwarjeet MALIK, et al., defendants, Yariv Katz, appellant.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 730

30 N.Y.S.3d 136

2016 N.Y. Slip Op. 02642

SV VERNON 43, LLC, respondent,

v.Kanwarjeet MALIK, et al., defendants,Yariv Katz, appellant.

2015-06308, Index No. 5687/14.

Supreme Court, Appellate Division, Second Department, New York.

April 6, 2016.

Podvey, Meanor, Catenacci, Hildner Cocoziello & Chattman, P.C., New York, N.Y. (Wendy B. Shepps of counsel), for appellant.

Solomon & Siris, P.C., Garden City, N.Y. (Bill Tsevis of counsel), for respondent.

REINALDO E. RIVERA, J.P., MARK C. DILLON, CHERYL E. CHAMBERS, and THOMAS A. DICKERSON, JJ.

In an action, inter alia, to recover damages for fraud and conversion, the defendant Yariv Katz appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Sher, J.), entered March 10, 2015, as denied those branches of his motion which were pursuant to CPLR 3013 and CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On September 17, 2013, the plaintiff entered into a real estate transaction with someone purporting to be Madie B. McCarter, the record owner of certain real property known as 43 Vernon Avenue, in Brooklyn (hereinafter the property), pursuant to which a seller deeded the property to the plaintiff. The seller was represented by the defendant Yariv Katz.

Approximately one month later, Madie B. McCarter, a resident of North Carolina, commenced an action against the plaintiff, alleging that the September 17, 2013, deed was a forgery, and seeking a declaration that the deed was and void. The plaintiff then commenced this action against Katz and others. The complaint interposed causes of action alleging conversion, money had and received, unjust enrichment, and aiding and abetting fraud against Katz.

Prior to serving an answer, Katz moved, inter alia, pursuant to CPLR 3013 and CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against him. The Supreme Court denied those branches of his motion, and Katz appeals.

“A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) will be granted only if the documentary evidence submitted by the defendant utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law” (Bodden v. Kean, 86 A.D.3d 524, 526, 927 N.Y.S.2d 137 ; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ). Here, contrary to Katz's contention, the documentary evidence he submitted was insufficient to utterly refute either the existence of fraud, Katz's knowledge thereof, or his substantial assistance in the achievement of the alleged fraud. Accordingly, the Supreme Court did not err in denying that branch of Katz's motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action to recover damages for aiding and abetting fraud (see Ginsburg Dev. Cos., LLC v. Carbone, 85 A.D.3d 1110, 1111, 926 N.Y.S.2d 156 ).

On a motion...