Yesterday, we reviewed the first go-round in Mrs. Weinberg’s litigation to undo the sale of two buildings, one of which was her family home for the past 50 years. Today, in Weinberg v Kaminsky 2017 NY Slip Op 31628(U) August 4, 2017 Supreme Court, New York County
Docket Number: 150869/2017 Judge: Manuel J. Mendez, we see that this attempt will fail as well. Mrs. Weinberg is no longer lucid, and cannot make out fraud allegations in the case.
“Plaintiff is an elderly widow who allegedly suffers from Alzheimer’s disease. On May 10, 2013 Plaintiff sold two buildings including the “family home” she has resided in for the past fifty (50) years. Plaintiff commenced an action in Supreme Court, New York County, under Index No. 652273/2013 approximately one month after the sale of the properties. Plaintiff asserted causes of action for rescission and to set aside the sale and deed due to fraud, conversion, unjust enrichment and legal malpractice (“First Action”). The First Action was dismissed in the early stages of litigation and Plaintiff appealed. On September 1, 2016 the Appellate Division, despite concerns over Plaintiff’s representation, affirmed the dismissal finding that the complaint was “bare bones” and failed to allege any “material misrepresentation,” as required on claims of fraud and undue influence, or “proximate cause” needed for the legal malpractice claims (Weinberg v Sultan, 142 AD3d 767, 37 NYS3d 13 [1st Dept. 2016]). ”
“To plead a cause of action for fraud, a party must allege the elements of representation of a material existing fact, falsity, scienter, justifiable reliance and damages (Bramex Assocs., Inc. v CBI Agencies, Ltd, 149 AD2d 383, 540 NYS2d 243 [1st Dept. 1989]). Each of these essential elements must be supported by factual allegations sufficient to satisfy CPLR §3016[b], which requires that the circumstances constituting the wrong shall be stated in detail. CPLR §3016[b] imposes a more stringent standard of pleading than the generally applicable ‘notice of the transaction’ rule of CPLR §3013, and complaints based on fraud which fail in whole or in part to meet this special test of factual pleading will be dismissed (Megaris Furs v Gimbel Bros., 172 AD2d 209, 568 NYS2d 581 [1st Dept. 1991]). Actual knowledge of the fraud may be generally stated (Stanfield Offshore Leveraged Assets, Ltd. v Metro. Life Ins. Co., 64 AD3d 472, 883 NYS2d 486 [1st Dept. 2009]). However, statements made in pleadings upon information and belief are not sufficient to establish the necessary quantum of proof to sustain allegations of fraud (Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610, 23 NYS3d 173 [1st Dept. 2015]). ”
“The court is constrained by the law in dismissing this case against the Moving Defendants. Had Ms. Weinberg been lucid, she may have been able to allege facts sufficient to state a viable claim. However, by Plaintiff’s own account she is not and her Verified Complaint against Moving Defendants alleged on “information and belief” must be dismissed. “