CPLR 3016(f)

SSG Door & Hardware, Inc. v APS Contr., Inc., 2018 NY Slip Op 07481 [2d Dept. 2018]

In an action involving, inter alia, goods sold and delivered, CPLR 3016(f) permits a plaintiff to “set forth and number in his [or her] verified complaint the items of his [or her] claim and the reasonable value or agreed price of each.” “To meet the requirements of CPLR 3016(f), a complaint must contain a listing of the goods or services provided, with enough detail that it may readily be examined and its correctness tested entry by entry'” (Teal, Becker & Chiaramonte, CPAs v Sutton, 197 AD2d 768, 768-769, quoting Innis, Pearce & Co. v Poppenberg, Inc., 213 App Div 789, 790; see Raytone Plumbing Specialities, Inc. v Sano Constr. Corp., 92 AD3d 855, 856). If the complaint meets these requirements, the defendant may not generally deny allegations of the complaint, but must, instead, specifically dispute the items on the plaintiff’s list (see Summit Sec. Servs., Inc. v Main St. Lofts Yonkers, LLC, 73 AD3d 906).

Here, the complaint failed to comply with CPLR 3016(f). The three invoices failed to state the price of each individual invoice item, or the date when each item was delivered. Although it was acknowledged that partial payment was made, the plaintiff did not specify what the partial payment was for. The plaintiff also alleged that the defendant made a partial payment toward one invoice without specifying to which of the invoiced items the defendant’s payment was applied (see Anderson & Anderson, LLP-Guangzhou v Incredible Invs. Ltd., 107 AD3d 1520Summit Sec. Servs., Inc. v Main St. Lofts Yonkers, LLC, 73 AD3d 906Epstein, Levinsohn, Bodine, Hurwitz & Weinstein, LLP v Shakedown Records, Ltd., 8 AD3d 34Innis Pearce & Co. v Poppenberg, Inc., 213 App Div 789).

In any event, even assuming CPLR 3016(f) was complied with, a general denial is sufficient where a defense to the cause of action pursuant to CPLR 3016(f) speaks to the “entirety of the parties’ dealings” (Anderson & Anderson, LLP-Guangzhou v Incredible Invs. Ltd., 107 AD3d at 1522 [internal quotation marks omitted]; see Harbor Seafood v Quality Fish Co., 194 AD2d 713). In this case, the defense—that the plaintiff breached the contract by untimely delivering the items in the contract—goes to the entirety of the parties’ dealings. Further, damages awarded on the counterclaim may offset liability for goods sold and delivered if the circumstances warrant it (see Created Gemstones v Union Carbide Corp., 47 NY2d 250, 255; Panda Capital Corp. v Kopo Intl., 242 AD2d 690, 692).

CPLR 3012; 3216

CPLR 3012

CPLR 3216

Dutchess Truck Repair, Inc. v Boyce, 2014 NY Slip Op 05768 [2nd Dept. 2014]

"Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default" (CPLR 3012[d]; see EHS Quickstops Corp. v [*2]GRJH, Inc., 112 AD3d 577, 578). Similarly, a court may relieve a party from an order on the basis of "excusable default, if such motion is made within one year after service of a copy of the . . . order with written notice of its entry upon the moving party" (CPLR 5015[a][1]). However, relief from a default is proper only where the party seeking relief demonstrates a reasonable excuse for the default and a potentially meritorious defense (see Farhadi v Qureshi, 105 AD3d 990, 991; Deutsche Bank Natl. Trust Co. v Gutierrez, 102 AD3d 825; Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724, 725).

Here, even assuming that the plaintiffs' excuse of law office failure was sufficient to excuse their failure to serve a timely reply to the counterclaim of the defendants Joe Boyce, Sally Boyce, and Trans Star Enterprises, Inc. (hereinafter collectively the defendants) (see Michaels v Sunrise Bldg. & Remodeling, Inc., 65 AD3d 1021, 1023; CPLR 2005), the Supreme Court properly declined to vacate their default and to compel acceptance of their reply. The record establishes that, after the defendants' rejection of the plaintiffs' reply to the counterclaim and the court's finding that they were in default, the plaintiffs waited nearly two years before moving to vacate their default and to compel the defendants to accept their reply. Because the plaintiffs proffered no reasonable excuse for their failure to promptly seek relief, the court providently exercised its discretion in denying those

branches of the plaintiffs' motion (see Nash v Port Auth. of N.Y. & N.J., 22 NY3d 220, 226; Karalis v New Dimensions HR, Inc., 105 AD3d 707, 708).

"Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, may dismiss the party's pleading on terms" (CPLR 3216[a]). Before doing so, the court or the party seeking such relief must serve a written demand to resume prosecution and to serve and file a note of issue within 90 days of receipt of such demand, and further advise the party upon whom such notice was served that failure to do so may result in dismissal of the action (see CPLR 3216[b][3]). Pursuant to 22 NYCRR 202.21(a), an action will not be deemed ready for trial or inquest unless a note of issue is first filed, accompanied by a certificate of readiness stating that there are no outstanding requests for discovery and the case is ready for trial (see 22 NYCRR 202.21[a], [b]; Furrukh v Forest Hills Hosp., 107 AD3d 668, 669).

On March 26, 2012, the Supreme Court, on its own initiative, and based upon the plaintiffs' repeated failure to file a compliant note of issue as directed, issued a 90-day notice requiring the plaintiffs to produce all outstanding discovery and file a note of issue. Although the plaintiffs filed a note of issue on June 9, 2012, the accompanying certificate of readiness, which stated that an appeal was pending with respect to discovery issues, did not comply with 22 NYCRR 202.21(a) and (b) (see Furrukh v Forest Hills Hosp., 107 AD3d at 669; Brown v Astoria Fed. Sav., 51 AD3d 961, 962; Blackwell v Long Is. Coll. Hosp., 303 AD2d 615, 615-616). The plaintiffs also failed to demonstrate that the complaint should not be dismissed based upon their failure to prosecute the action by proffering "a justifiable excuse for the delay and a meritorious cause of action" (Blackwell v Long Is. Coll. Hosp., 303 AD2d at 616; see Sharpe v Osorio, 21 AD3d 467, 468). Accordingly, the court properly granted that branch of the defendants' motion which was to strike the note of issue and, upon so doing, providently exercised its discretion granting that branch of the defendants' motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3216 for failure to prosecute (see Blackwell v Long Is. Coll. Hosp., 303 AD2d at 616; Perez v Long Is. Jewish-Hillside Med. Ctr., 173 AD2d 530, 530-531).

Bennett v Patel Catskills, LLC, 2014 NY Slip Op 05616 [2nd Dept. 2014]

The process server's affidavit of service created a rebuttable presumption that the plaintiffs served the defendant by delivering a copy of the summons and complaint to the Secretary of State (see CPLR 311-a[a]; Limited Liability Company Law § 303; Kolonkowski v Daily News, L.P., 94 AD3d 704, 705; Thas v Dayrich Trading, Inc., 78 AD3d 1163, 1164; Trini Realty Corp. v Fulton Ctr. LLC, 53 AD3d 479). In opposition, the defendant denied receipt of the summons and complaint. The fact that the summons and complaint, which had been sent by certified mail, return receipt requested, to the address on file with the New York Secretary of State, had been returned to the Secretary of State as "unclaimed," raised a triable issue of fact as to whether the defendant received notice of the certified mail sent to it by the Secretary of State, and the matter must be remitted for a hearing and new determination of that issue and of the motion and cross motion (see Avila v Distinctive Dev. Co., LLC, ___ AD3d ___ [decided herewith]; Henniger v L.B.X. Excavating, 176 AD2d 917, 918; Rodriguez v Bridge Realty, 155 AD2d 271, 272; Rifenburg v Liffiton Homes, 107 AD2d 1015, 1016).

Contrary to the defendant's contention, the plaintiffs did not waive the issue of the late service of the answer and the alleged default when they failed to reject the answer in a timely manner. Since the plaintiffs notified the defendant that it was in default prior to service of an answer and promptly moved for leave to enter a default judgment after receiving the answer, the plaintiffs could not be deemed to have thereafter waived the issue of late service and the alleged default (see Hosten v Oladapo, 44 AD3d 1006, 1007; Katz v Perl, 22 AD3d 806, 807).

CPLR 3211, 3013, 3016, 3018, 3019

CPLR 3211(a)(7)

CPLR 3016(b)

CPLR 3013

CPLR 3018(b)

CPLR 3019(a)

Friedland Realty, Inc. v 416 W, LLC, 2014 NY Slip Op 06052 [2nd Dept. 2014]

On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff 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 NY3d 825, 827; Leon v Martinez, 84 NY2d 83, 87-88; Siracusa v Sager, 105 AD3d 937, 938).

"A claim of mutual mistake is stated where the allegations indicate that the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement" (Aventine Inv. Mgt. v Canadian Imperial Bank of Commerce, 265 AD2d 513, 514; see Chimart Assoc. v Paul, 66 NY2d 570, 573; Phillips v Phillips, 300 AD2d 642, 643). Absent fraud, "the mistake shown must be one made by both parties to the agreement, so that the intentions of neither are expressed in it" (Migliore v Manzo, 28 AD3d 620, 621; see Ribacoff v Chubb Group of Ins. Cos., 2 AD3d 153, 154; Matter of Shaw, 202 AD2d 433, 434). "A claim predicated on mutual mistake must be pleaded with the requisite particularity necessitated under CPLR 3016(b)" (Simkin v Blank, 19 NY3d 46, 52), which provides that "where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail." Ultimately, the proponent of reformation based on mutual mistake must demonstrate the particulars of the actual agreement intended by the parties, based on the particularized allegations in the complaint (see Chimart Assoc. v Paul, 66 NY2d at 574; George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 220).

Here, the defendant's second counterclaim and third affirmative defense did not describe the terms of the oral modification that the parties allegedly agreed to, or how those terms differed from the terms of the written agreement. Instead, that counterclaim and affirmative defense recited, in conclusory fashion, that the terms that had actually been agreed to by the parties prior to the writing, and which were allegedly confirmed pursuant to the oral modification, provided that the plaintiff was only entitled to a "reduced fee," but provided no specifics as to the amount of that reduced fee, or under what circumstances such a reduced fee was to be paid. Similarly, the defendant alleged that the plaintiff "was to be compensated for an introduction" to a prospective lessee, but alleged no details as to how its obligation to compensate the plaintiff for securing such an introduction differed from the terms of the written agreement.

Since the allegations of mutual mistake set forth in the defendant's second counterclaim and third affirmative defense were not made with the requisite particularity (see generally CPLR 3016[b]; Greater N.Y. Mut. Ins. Co. v United States Underwriters Ins. Co., 36 AD3d 441, 443), they failed to state a cause of action or defense, respectively, and the Supreme Court correctly granted those branches of the plaintiff's motion which were to dismiss that counterclaim and affirmative defense.

Katz v Miller, 2014 NY Slip Op 05957 [2nd Dept. 2014]

However, the Supreme Court should have granted those branches of the plaintiffs' motion which were for summary judgment striking the first through twelfth affirmative defenses. The second and eleventh affirmative defenses were not substantiated with factual allegations, and were conclusory in nature (see CPLR 3013, 3018[b]; Becher v Feller, 64 AD3d 672, 677; Cohen Fashion Opt., Inc. v V & M Opt., Inc., 51 AD3d 619). The plaintiffs established their prima facie entitlement to judgment as a matter of law striking the first, third through tenth, and twelfth affirmative defenses, and the Toppin defendants failed to raise a triable issue of fact in opposition (see Zuckerman v City of New York, 49 NY2d 557, 562).

The Supreme Court should also have granted those branches of the plaintiffs' motion which were for summary judgment dismissing the second and third counterclaims, which were in the nature of defenses to the complaint and did not assert facts upon which affirmative relief may be granted (see CPLR 3019[a]; P.J.P. Mech. Corp. v. Commerce & Indus. Ins. Co., 65 AD3d 195, 199-200). The Supreme Court properly denied that branch of the plaintiffs' motion which was for summary judgment dismissing the first counterclaim (see Real Property Law § 282).

CPLR R. 3016(b) with particularity

CPLR R. 3016 Particularity in specific actions

Nicosia v Board of Mgrs. of the Weber House Condominium, 2010 NY Slip Op 07254 (App. Div., 1st 2010)

Plaintiff's fraud claim should be dismissed for the additional reason that it is not pleaded with particularity (CPLR 3016[b]). A cause of action for fraud requires plaintiff to plead: (1) a material misrepresentation of a fact, (2) knowledge of its falsity, (3) an intent to induce reliance, (4) justifiable reliance and (5) damages (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). Plaintiff's complaint is bare-bones. Among other deficiencies, plaintiff does not allege how he learned that the Board was purporting to exercise its right of first refusal. Plaintiff attaches an August 6, 2007 letter that the Board sent to Axminster's attorney stating that the Board was electing to exercise its right of first refusal. However, plaintiff does not articulate who communicated this information to him or when he received this information. Thus, we are left to guess that somehow Axminster's attorney communicated the Board's decision to plaintiff at some point. Plaintiff also does not explain how he relied to his detriment on the Board's alleged exercise of its right of first refusal. While we can suppose that plaintiff's reliance somehow involved his refraining from taking steps to enforce the closing, it is not for us to interject our supposition into plaintiff's pleading. Nor is it our place to explain what damages might have flowed from the failure to close. The dissent points to allegations from the tortious interference cause of action where plaintiff alleges that because of defendants' wrongful conduct, "plaintiff's contract with Axminster to purchase the Unit was not consummated." However, this language does not appear in plaintiff's cause of action for fraud. And, even if it did, this language would hardly satisfy the CPLR 3016(b) requirement that the facts constituting the fraud "be stated in detail." Certainly, what plaintiff did or did not do after learning that the Board was exercising its right of first refusal, and what damages flowed from that action or inaction, are within plaintiff's purview.

While the dissent may be correct that plaintiff can prevail on his fraud claim "if Axminster reasonably relied on the misrepresentation in selling the unit to Kesy," plaintiff has not alleged this. Rather, plaintiff's allegations concerning Axminster are more nefarious — that Axminster directly breached its duties to plaintiff by failing to perform "its required due diligence to determine if the sale to KESY was in accordance with the By-laws."

Thus, the facts of this case could very well eventually support a fraud claim. However, plaintiff has not pleaded these facts sufficiently and, unlike the dissent, we decline to speculate and infer the facts for him, especially given our liberal rules regarding amendment of pleadings.

The bold is mine.


Pleading Defamation and Fraud. CPLR R. 3016(a)(b)

Moreira-Brown v City of New York, 2010 NY Slip Op 02063 (App. Div., 1st, 2010)

In this action for defamation and emotional distress, the verified complaint alleges that on or about September 12, 1998, defendant Police Detective Raymond Rivera, acting as agent for his codefendants, made written and verbal defamatory statements that plaintiff "had committed rape and sexual assault and was being sought by the police for arrest and prosecution [for] rape and sexual assault." These words were not demarcated as a quotation in the complaint. Dismissing the complaint, the motion court held that plaintiff had not complied with CPLR 3016(a) because the complaint "does not set forth the particular words alleged to be defamatory."

While a complaint alleging defamation must allege the particular spoken or published words on which the claim is based, the words need not be set in quotation marks (see John Langenbacher Co. v Tolksdorf, 199 AD2d 64 [1993]). When construed in the light most favorable to plaintiff, the complaint alleges that Detective Rivera specifically stated that plaintiff "had committed rape and sexual assault," and "was being sought by the police for arrest and [*2]prosecution" for those crimes. This allegation is sufficient to meet the requirements of CPLR 3016(a).

Colasacco v Robert E. Lawrence Real Estate, 68 AD3d 706 (App. Div., 2nd, 2009)

CPLR 3016 (b) provides, in relevant part, that "[w]here a cause of action or defense is based upon misrepresentation, fraud, mistake . . . the circumstances constituting the wrong shall be stated in detail." The specificity requirements are relaxed where it is alleged that the particular circumstances of the alleged fraud are peculiarly within the defendants' knowledge (see Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491-492 [2008]; Pericon v Ruck, 56 AD3d 635, 636 [2008]).

"The essential elements of a cause of action sounding in fraud are a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury" (Orlando v Kukielka, 40 AD3d 829, 831 [2007]; see Ross v DeLorenzo, 28 AD3d 631, 636 [2006]). Here, the complaint fails to allege the elements of fraud with sufficient specificity. In particular, the complaint fails to allege that DiCorato's alleged misrepresentations to the plaintiffs were known by the defendants to be false. Furthermore, it is clear from the face of the complaint that the plaintiffs' supposed reliance upon DiCorato's alleged misrepresentations concerning the location of the property's boundary lines was unreasonable as a matter of law (see Orlando v Kukielka, 40 AD3d at 831). There was no allegation in the complaint that the dimensions and boundary lines of the subject property were within the exclusive knowledge of the defendants. Indeed, the plaintiffs could easily have ascertained these facts through the use of ordinary means (see Esposito v Saxon Home Realty, 254 AD2d 451 [1998]; Bennett v Citicorp Mtge., Inc., 8 AD3d 1050 [2004]; Mosca v Kiner, 277 AD2d 937, 938 [2000]). Accordingly, the Supreme Court should have dismissed the fraud cause of action pursuant to CPLR 3211 (a) (7).

Similarly, the cause of action sounding, in effect, in negligent misrepresentation also fails to meet the specificity requirements of CPLR 3016 (b). Furthermore, in order to prevail on such a cause of action, a plaintiff must establish that the defendant had a duty to use reasonable care to impart correct information due to a special relationship between the parties, that the information was incorrect or false, and that the plaintiff reasonably relied upon the information (see Grammer v Turits, 271 AD2d 644, 645 [2000]). The complaint fails to allege that the defendants had a duty to the plaintiffs to impart correct information arising out of a special relationship between them. Moreover, as with the fraud cause of action, the complaint fails to allege circumstances under which the plaintiffs' reliance upon DiCorato's alleged misrepresentations could be considered reasonable or justifiable. Thus, the Supreme Court should also have dismissed the second cause of action pursuant to CPLR 3211 (a) (7).

The bold is mine.

Sufficiently particular but individual issues predominate: CPLR R. 3016; CPLR § 901

CPLR R. 3016 Particularity in specific actions

CPLR § 901 Prerequisites to a class action

Dobroshi v Bank of Am., N.A., 2009 NY Slip Op 06382 (App. Div., 1st, 2009)

Contrary to defendant's claim, the second cause of action pleads fraud with sufficient particularity to satisfy CPLR 3016(b) (see Lanzi v Brooks,
43 NY2d 778, 780 [1977]). It informs defendant that plaintiff complains
of the significant increase in settlement costs between the Good Faith
Estimate of Settlement Services (GFE) and the HUD-1 statement, and of
the fact that she was informed about this increase only one day before
the closing. 

Plaintiff's allegation that defendant deliberately underestimated
settlement costs to induce her to obtain a loan from it, rather than
from a competing lender states a claim for fraud (see Wright v Selle, 27 AD3d 1065, 1067-1068 [2006]). The GFE was not a mere statement of future intent (see Watts v Jackson Hewitt Tax Serv., Inc., 579 F Supp 2d 334, 352 [ED NY 2008]), and the issue of material misrepresentation is not subject to summary disposition (see e.g. Brunetti v Musallam, 11 AD3d 280, 281 [2004]).

The motion court should have stricken the class action allegations.
First, individual issues will predominate
because all claims under
General Business Law § 349 will require [*3]analysis of whether the ultimate closing costs were so unreasonable as to amount to a deceptive practice (cf. Weil v Long Island Savings Bank, FSB,
200 FRD 164, 174 [ED NY 2001] [distinguishing a case where each
plaintiff would have to provide evidence of the services performed
compared to a case where the plaintiffs claim that the alleged scheme
was illegal per se]). Moreover, plaintiff contends that defendant's bad
faith in making estimates is actionable. However, to determine if
defendant acted in bad faith, it will be necessary to individually
examine each of the tens of thousands of transactions at issue.

Finally, plaintiff's proposed class would number in the thousands and
would have individually tailored written disclosures, different types
and amounts of fees and different reasons for the increase in closing
costs. These circumstances negate the possibility that common questions
would predominate (see Rose v SLM Fin. Corp., 254 FRD 269, 272-73 [WD NC 2008]).

The bold is mine.

CPLR R. 3211 ROUNDUP: CPLR R. 3211(a)(1)(7)(8); CPLR R. 3016(a)

CPLR R. 3211

(a)(1) defense is founded upon documentary evidence

(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds

(a)(7)  pleading fails to state a cause of action

(8) the court has not jurisdiction of the person of the defendant

CPLR R. 3016 Particularity in specific actions

Freud v St. Agnes Cathedral School, 2009 NY Slip Op 05943 (App. Div., 2nd, 2009)

It is undisputed that, on August 27, 2007, the plaintiff's process
server visited the defendant's school and delivered the summons and
complaint in this action to Patricia Wren, who was employed by the
defendant. The defendant moved to dismiss the complaint on the ground
that service of process was invalid since Wren was only a secretary and
not authorized to receive service of process on behalf of the
defendant. At the hearing to determine the validity of service of
process upon the defendant, the process server testified that she
approached Wren, whom she believed to be a secretary, identified the
summons and complaint, and asked Wren if she was authorized to accept
service of the papers. According to the process server, Wren replied
that she was so authorized. Wren testified at the hearing that she was
employed by the defendant as a clerk, but denied that she ever told the
process server that she was authorized to accept service of process on
behalf of the defendant. After the hearing, the court denied the motion
to dismiss.

Ordinarily, the hearing court's assessment of a witness's credibility is entitled to substantial deference (see Ortiz v Jamwant, 305 AD2d 477; McGuirk v Mugs Pub, 250 AD2d 824, 825; Carlin v Crum & Forster Ins. Co., 170 AD2d 251). Under these circumstances, we perceive no reason to disturb its determination on appeal (see Fashion Page v Zurich Ins. Co., 50 NY2d 265).

Horbul v Mercury Ins. Group, 2009 NY Slip Op 05947 (App. Div., 2nd, 2009)

The plaintiff alleged in the complaint that the defendants committed
slander per se when they reported to the police that the plaintiff had
filed a fraudulent claim with them for no-fault medical benefits for
his son. However, the complaint failed to comply with CPLR 3016(a),
which requires that a complaint sounding in defamation "set forth the
particular words complained of'"
(Simpson v Cook Pony Farm Real Estate, Inc., 12 AD3d 496, 497, quoting CPLR 3016[a]; see Fusco v Fusco, 36 AD3d 589). Compliance with CPLR 3016(a) is strictly enforced (see Abe's Rooms, Inc. v Space Hunters, Inc., 38 AD3d 690).
Accordingly, that branch of the defendants' motion which was pursuant
to CPLR 3211(a)(7) to dismiss the complaint for failure to state a
cause of action should have been granted. 

Pinkava v Yurkiw, 2009 NY Slip Op 05953 (App. Div., 2nd, 2009)

The Supreme Court denied the defendants' motion, in effect, to
dismiss the first cause of action pursuant to CPLR 3211(a)(7), for
summary judgment dismissing the second through twelfth causes of action
on the ground that they were barred by the statute of frauds, and for
summary judgment on the counterclaims. We affirm.

The statue of frauds prohibits the conveyance of real property without a written contract (see
General Obligations Law § 5-703[1]). While the statute of frauds
empowers courts of equity to compel specific performance of agreements
in cases of part performance (see
General Obligations Law § 5-703[4]), the claimed partial performance "must be unequivocally referable to the agreement" (Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 235; Luft v Luft, 52 AD3d 479,
481). It is not sufficient that the oral agreement gives significance
to the plaintiff's actions. Rather, the actions alone must be "
unintelligible or at least extraordinary,' [and] explainable only with
reference to the oral agreement" (Anostario v Vicinanzo, 59 NY2d 662, 664, quoting Burns v McCormick, 233 NY 230, 232; see Adelman v Rackis,
212 AD2d 559, 561). Significantly, the doctrine of part performance "is
based on principles of equity, in particular, recognition of the fact
that the purpose of the Statute of Frauds is to prevent frauds, not to
enable a party to perpetrate a fraud by using the statute as a sword
rather than a shield"
(Nicolaides v Nicolaides, 173 AD2d 448, 449-450, see Scutti Enters. v Wackerman Guchone Custom Bldrs., 153 AD2d 83, 87).

Continue reading “CPLR R. 3211 ROUNDUP: CPLR R. 3211(a)(1)(7)(8); CPLR R. 3016(a)”

Pleadings & CPLR R. 3016 & Slander per se

CPLR R. 3016 Particularity in specific actions

Pourquoi M.P.S., Inc. v Worldstar Intl., Ltd., 2009 NY Slip Op 05755 (App. Div., 2nd, 2009)

The order appealed from relates to the plaintiff's amended complaint,
and the affirmative defenses set forth in the answer thereto of the
defendant Worldstar International, Ltd. [*2]However, those pleadings are no longer viable as they have been superseded by new pleadings alleging new causes of action
(see Penniman v Fuller & Warren Co., 133 NY 442, 444; Bobash, Inc. v Festinger, 57 AD3d 464, 465; Williams v Feig, 12 AD3d 504, 505; Schoenborn v Kinderhill Corp., 98 AD2d 831, 832; Hawley v Travelers Indem. Co., 90 AD2d 684; Halmar Distribs. v Approved Mfg. Corp., 49 AD2d 841; Millard v Delaware, L. & W. R. Co., 204 App Div 80, 83; Branower & Son v Waldes, 173 App Div 676, 678). Accordingly, the appeal has been rendered academic and must be dismissed (see generally Chalasani v Neuman, 64 NY2d 879, 880; Bobash, Inc. v Festinger, 57 AD3d at 465; DePasquale v Estate of DePasquale, 44 AD3d 606, 607; Stefanopoulos v Action Airport Serv. of L.I., Inc., 35 AD3d 590; Weber v Goss, 18 AD3d 540; Monter v Massachusetts Mut. Life Ins. Co., 12 AD3d 650, 651; Williams v Feig, 12 AD3d at 505; Van Valkenburgh, Nooger & Neville v Rider Publ., 24 AD2d 437, 438).

Epifani v Johnson, 2009 NY Slip Op 05287 (App. Div., 2nd, 2009)

"The elements of a cause of action [to recover damages] for defamation are a false [*5]statement,
published without privilege or authorization to a third party,
constituting fault as judged by, at a minimum, a negligence standard,
and it must either cause special harm or constitute defamation per se'"
(Salvatore v Kumar, 45 AD3d 560, 563, quoting Dillon v City of New York, 261 AD2d 34, 38). The complaint must set forth the particular words allegedly constituting defamation (see CPLR
3016[a]), and it must also allege the time when, place where, and
manner in which the false statement was made, and specify to whom it
was made
(see Dillon v City of New York, 261 AD2d at 38).

"Generally, a plaintiff alleging slander must plead and prove
that he or she has sustained special damages, i.e., the loss of
something having economic or pecuniary value'" (Rufeh v Schwartz, 50 AD3d 1002, 1003, quoting Liberman v Gelstein, 80
NY2d 429, 434-435). "A plaintiff need not prove special damages,
however, if he or she can establish that the alleged defamatory
statement constituted slander per se" (Rufeh v Schwartz, 50 AD3d
at 1003). The four exceptions which constitute "slander per se" are
statements (i) charging plaintiff with a serious crime; (ii) that tend
to injure another in his or her trade, business or profession; (iii)
that plaintiff has a loathsome disease; or (iv) imputing unchastity to
a woman (see Liberman v Gelstein, 80 NY2d at 435). When
statements fall within one of these categories, the law presumes that
damages will result, and they need not be alleged or proven (id.).

Johnson, in addressing the defamation cause of action, appears
to claim, in effect, that her alleged statement to Supple's references
that Supple was "crazy" is the only statement at issue. However, in
addition to this purported statement, Supple alleges that Johnson
stated, to Oliverre and another employee named Marita, that Supple's
employment with her was being terminated because she was stealing.

The complaint alleges that the statement that Supple was
terminated because she was stealing from Johnson was made on or about
June 15, 2005, sets forth the statement allegedly made, and that it was
made to Oliverre and Marita. Accordingly, these allegations satisfied
the pleading requirements of CPLR 3016, inasmuch as it alleged the time
when, place where, and manner in which the false statement was made,
and specified to whom it was made (see generally Dillon v City of New York, 261 AD2d at 38).

With regard to damages, the complaint only alleges that Supple "has
been injured in her good name and reputation, has suffered great pain
and mental anguish, and has otherwise been damaged in all to her damage
[sic] in a sum to be proven at the time of trial according to proof."
This assertion fails to allege special damages with sufficient
particularity. However, if the allegedly defamatory statement qualifies
as slander per se, the failure to plead special damages with
particularity will not be fatal. 

As to the alleged statement that Supple was stealing from Johnson,
this constitutes an allegation of a "serious crime" so as to qualify as
slander per se
(see Liberman v Gelstein, 80 NY2d at 435
[discussing the distinction between serious and nonserious crimes for
qualification as slander per se, and citing the Restatement of Torts, §
571, comment g, which lists crimes actionable as per se slander,
including, inter alia, larceny]). Further, this alleged statement would
clearly constitute one of fact rather than the privileged expression of
an opinion (see Mann v Abel, 10 NY3d 271,
276 [expressions of opinion, as opposed to assertions of fact, are
deemed privileged and, no matter how offensive, cannot be the subject
of an action to recover damages for defamation]).

With regard to Johnson's alleged statement describing Supple as
"crazy," the complaint only alleges that the defamation occurred when
Johnson made this remark generally to Supple's "references," and thus
failed to identify, with necessary specifity, the person or persons to
whom the statements were made (see Dillon v City of New York, 261
AD2d at 38), resulting in an insufficiently pleaded cause of action.
Moreover, Johnson's remark to Oliverre allegedly characterizing Supple
as "crazy" does not appear to be a defamatory statement concerning
Supple; Johnson did not tell Oliverre that she believed that Supple was
"crazy," but only that she telephoned Supple's references and told them
that Supple was "crazy." To the extent that the Court may infer that
the substance of the statement was Johnson's assertion that Supple was
"crazy," this would appear to be a hyperbolic expression of opinion
and, thus, nonactionable
(see generally Mann v Abel, 10 NY3d at 276).

Since, however, Johnson's alleged statement that Supple's
employment was being terminated because Supple was stealing was
sufficiently pleaded, and constituted slander per se, the Supreme Court
properly denied that branch of Johnson's motion which was to dismiss so
much of the eighth cause of action as was premised on this allegedly
defamatory statement.

The bold is mine.

CPLR R. 3016 Pleading Requirements; Ct. App.

CPLR R. 3016 Particularity in specific actions

Eurycleia Partners, LP v Seward & Kissel, LLP, 2009 NY Slip Op 04299 (Ct. App., 2009)

The elements of a cause of action for fraud require a material
misrepresentation of a fact, knowledge of its falsity, an intent to
induce reliance, justifiable reliance by the plaintiff and damages (see Ross v Louise Wise Servs., Inc., 8 NY3d 478, 488 [2007]; Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]). A claim rooted in fraud must be pleaded with the requisite particularity under CPLR 3016 (b).

We recently explored the pleading requirements of CPLR 3016 (b) in Pludeman v Northern Leasing Sys., Inc. (10 NY3d 486
[2008]). In that case, we noted that the purpose underlying the statute
is to inform a defendant of the complained-of incidents. We cautioned
that the statute "should not be so strictly interpreted as to prevent
an otherwise valid cause of action in situations where it may be
impossible to state in detail the circumstances constituting a fraud" (id.
at 491 [internal quotation marks and citations omitted]). Although
there is certainly no requirement of "unassailable proof" at the
pleading stage, the complaint must "allege the basic facts to establish
the elements of the cause of action" (id. at 492). We therefore
held that CPLR 3016 (b) is satisfied when the facts suffice to permit a
"reasonable inference" of the alleged misconduct. And, "in certain
cases, less than plainly observable facts may be supplemented by the
circumstances surrounding the alleged fraud" (id. at 493).

Here, whether the claim is labeled fraud or aiding and abetting
fraud, we conclude that neither the allegations in the complaint nor
the surrounding circumstances give rise to a reasonable inference that
S & K participated in a scheme to defraud or knew about the falsity
of the two contested statements in the offering memoranda. The amended
complaint conclusorily alleges that at some unspecified point in 2005 S
& K became aware that more than 10% of Wood River's holdings were
invested with Endwave but, nonetheless, S & K continued to issue
offering memoranda falsely representing that Wood
River would not
invest more than 10% of its assets in any given security [FN7].
In support of this allegation, plaintiffs assert that S & K was
informed in January 2005 that Wood River had purchased 10% of Endwave's
stock. But the fact that S & K may have been aware that Wood River
owned 10% of Endwave's stock is not material to whether Wood River
invested more than 10% of its total assets in Endwave, particularly
where there is no [*5]indication that S
& K was ever informed of Wood River's overall asset levels or the
cost basis of the Endwave shares. Plaintiffs' reliance on a 2002 letter
— predating the existence of Wood River by nearly a year — from a S
& K attorney to Whittier discussing the performance of a separate
fund is similarly unavailing.

Nor do the surrounding circumstances breathe life into
plaintiffs' fraud claim premised on the 10% cap representation. Unlike
the individual corporate officer defendants in Pludeman, each
of whom managed a company implicated in a nationwide fraudulent scheme
covering a span of years, S & K was outside counsel to Wood River,
whose manager — Whittier — was convicted of securities fraud. Notably,
plaintiffs do not dispute S & K's assertion that they secured
Whittier's assistance in drafting the amended complaint. The absence of
any firm factual pleadings relevant to S & K's knowledge that Wood
River breached the 10% restriction or any fraudulent scheme between
Whittier and S & K is even more conspicuous in light of Whittier's
cooperation with plaintiffs.

We likewise find the amended complaint's alternative allegation
of fraud or aiding and abetting fraud — that S & K knew TBS was not
Wood River's auditor yet continued to list TBS in the offering
memoranda — to be similarly conclusory.
As the Appellate Division
recognized, the complaint elsewhere alleges that in the summer of 2005
TBS falsely represented that it was the fund's auditor and would
conduct an audit. In short, although we are mindful that a plaintiff
need not produce absolute proof of fraud and that there may be cases in
which particular facts are within a defendant's possession, it is also
true that the strength of the requisite inference of fraud will vary
based on the facts and context of each case.
Under the facts of this
case, we believe that the allegations in the complaint, coupled with
the surrounding circumstances, do not give rise to a reasonable
inference that S & K committed fraud or aided and abetted Wood
River's or Whittier's fraudulent activities.

The bold is mine.

CPLR R. 3016 Fraud Not Pled With Particularity

CPLR R. 3016 Particularity in specific actions

Cangro v Marangos, 2009 NY Slip Op 02661(App. Div., 1st, 2009)

Order, Supreme Court, New York County (Leland G. DeGrasse, J.),
entered January 22, 2008, which denied plaintiff's motion for an order
"granting compensatory and punitive damages" and setting a trial date,
and granted defendant's cross motion to dismiss the complaint for
failure to state a cause of action, unanimously affirmed, without

The allegations in the complaint and in plaintiff's affidavit constitute "bare legal conclusions" (see Caniglia v Chicago Tribune-N.Y. News Syndicate,
204 AD2d 233, 233-234 [1994]). Plaintiff's fraud claims are not pleaded
with the requisite particularity (CPLR 3016[b])
. Her defamation claims
fail because the alleged offending statements were made in the context
of a judicial proceeding to which they were directly

related (see Sexter & Warmflash, P.C. v Margrabe, 38 AD3d 163, 174-176 [2007]).

The bold is mine.