Plaintiff's Shotgun Pattern Complaint Dismissed in Whole
Complaints might be compared to a precision rifled single shot or to a shotgun, in which an ever-widening pattern of scatter shot is fired. Complaints patterned on either might be successful, but Iwachiw v Bahr 2013 NY Slip Op 30283(U) January 11, 2013 Supreme Court, New York County
Docket Number: 401546/2011 Judge: Lucy Billings chose the shotgun approach and was wholly unsuccessful.
"The thrust of the complaint's allegations against Adorno Denker and Scheiner is that they participated with other defendants in fraudulently or negligently denying plaintiff Workers' compensation and insurance coverage for property loss. The complaint simply alleges that
Metazur Restaurant was negligent and also claims wrongful death, malpractice, and defamation against all defendants.
The complaint provides no detail as to what actions by any defendants were fraudulent or what insurance claims they fraudulently or negligently canceled, failed to file, or otherwise denied to plaintiff. His unsworn opposition to Scheiner's motion indicates that defendant Tower Group's
misdescription of his mother's house caused the denial of insurance coverage for the house, but he nowhere pleads the source of any duty on defendants' part to provide insurance coverage to him.
A fraud claim requires plaintiff to allege that defendants misrepresented or omitted a material fact, knowing the misstatement or omission was false, to induce plaintiff to rely on it, and that plaintiff justifiably relied on the misrepresentation or omission and incurred damages from that reliance. Mandarin Tradinq Ltd. v. Wildenstein, 16 N.Y.3d 173, 178 (2011); Gosmile, Inc. v. Levine, 81 A.D.3d 7 7 , 81 (1st Dep't 2011); Nicosia v. Board of Mqrs. of the Weber House Condominium, 77 A.D.3d 455, 456 (1st Dep't 2010); Zanett Lombardier, Ltd. v. Maslow, 29 A.D.3d 495, 496 (1st Dep't 2006). Plaintiff must plead the circumstances of any claimed fraud in detail, such as the contents of any misrepresentation and when and to whom it was stated. C.P.L.R. § 3016(b); Pludeman v. Northern Leasing SysInc., 10 N.Y.3d 486, 492 (2008); El Entertainment U . S . LP v. Real Talk Entertainment, Inc., 85 A.D.3d 561, 562 (1st Dep't 2011); Waggoner v. Carum, 68 A.D.3d 1, 6 (1st Dep't 2009); Caldwell v. Gumley-Haft L.L.C., 55 A.D.3d 408 (1st Dep't 2008). Since plaintiff pleads none of these elements, let alone in detail, the complaint, even when supplemented by his affidavits in opposition to the motions and cross-motion, fails to support a claim of fraud perpetrated by any defendants against him. Therefore the court grants the motions and cross-motion to
dismiss the fraud claim against defendants Adorno Denker, Metazur Restaurant, and Scheiner. C.P.L.R. §§ 3016(b), 3211(a) (7)."