Tsinias Enters. Ltd. v. Taza Grocery, Inc.

• Decision Date: 22 May 2019
• Docket Number: Index No. 153992/17,2018–12969
• Citation: Tsinias Enters. Ltd. v. Taza Grocery, Inc., 172 A.D.3d 1271, 101 N.Y.S.3d 138 (N.Y. App. Div. 2019)
• Parties: TSINIAS ENTERPRISES LTD., Appellant, v. TAZA GROCERY, INC., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 1271

101 N.Y.S.3d 138

TSINIAS ENTERPRISES LTD., Appellant,

v.TAZA GROCERY, INC., et al., Respondents.

2018–12969

Index No. 153992/17

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

Submitted—January 17, 2019

May 22, 2019

Golino Law Group PLLC, New York, N.Y. (Brian W. Shaw of counsel), for appellant.

Charles E. Boulbol, P.C., New York, NY, for respondents.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for fraud and fraudulent inducement, the plaintiff appeals from an order of the Supreme Court, New York County (Arlene P. Bluth, J.), dated December 21, 2017. The order, insofar as appealed from, granted those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action to recover damages for fraud and fraudulent inducement. By decision and order of the Appellate Division, First Department, dated October 24, 2018, this appeal was transferred to this Court for hearing and determination (see N.Y. Const., Art VI, § 4 [i] ).

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

The plaintiff owns a building located at 350 Park Avenue South in New York County. In 1996, the plaintiff's sole shareholder was the Tsinias Family Partnership, LP, of which Nicholas Tsinias (hereinafter Nicholas) was the general partner.

Nicholas managed the subject building from December 19, 1996, until December 2, 2009. During his tenure as manager, he signed a lease on behalf of the plaintiff, which permitted the defendant Taza Grocery, Inc. (hereinafter Taza), to occupy the commercial premises for 10 years, from 2005 until 2015. Further, between 2005 and 2012, Nicholas signed, before a Notary Public, three lease extensions which permitted Taza, by its principal, the defendant Jamil Yabroudi, to remain in the premises for, in total, an additional 20 years.

In May 2015, the plaintiff commenced the instant action, inter alia, to recover damages for fraud and fraudulent inducement. The plaintiff alleged that the defendants "made false representations of material fact to [the][p]laintiff by misrepresenting the papers placed before [Nicholas] to sign" and that the defendants knew their representations to be false when made. The plaintiff further alleged that Nicholas signed all three lease extensions without ever reading them or being aware of the contents.

The defendants moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the causes of action to recover damages for fraud and fraudulent inducement. The Supreme Court granted those branches of the defendants' motion. The plaintiff appeals.

On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, "the court will ‘accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ " (see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720, quoting Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate" ( Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ).

Applying these principles here, we agree with the Supreme Court's determination to grant those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action to recover damages for fraud and fraudulent inducement. The elements of a cause of action to recover damages...