You are here: / / Plaintiff Could Not Show Justifiable Reliance Upon Alleged Misrepresentations...
, ,

Plaintiff Could Not Show Justifiable Reliance Upon Alleged Misrepresentations in a Stipulation

The Second Department determined the plaintiff, who was seeking to vacate portions of a so-ordered stipulation in a custody matter, failed to show the stipulation was the result of fraud.  In particular, plaintiff failed to show justifiable reliance upon any alleged misrepresentation because attachments to the stipulation reflected the actual facts:

As the party seeking to set aside the stipulation, the plaintiff had the burden of showing that the stipulation was the result of fraud … . “A cause of action alleging fraud requires a plaintiff to establish a misrepresentation or omission of material fact which the defendant knew was false, that the misrepresentation was made to induce the plaintiff’s reliance, the plaintiff’s justifiable reliance on the misrepresentation or material omission, and a resulting injury” … .

In light of the attachments provided with the stipulation, the plaintiff failed to establish the element of justifiable reliance. Where the plaintiff ” has the means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations'” … . Cervera v Bressler, 2015 NY Slip Op 02441, 2nd Dept 3-25-15

 

You might also like
PLAINTIFF’S DECEDENT’S COUNSEL IN THIS SLIP AND FALL CASE DID NOT SEEK LETTERS OF ADMINISTRATION FOR FIVE YEARS AFTER PLAINTIFF’S DECEDENT’S DEATH; THE ACTION SHOULD HAVE BEEN DISMISSED PURSUANT TO CPLR 1021 (SECOND DEPT). ​
BRADY MATERIAL WAS WITHHELD, CROSS-EXAMINATION ABOUT A COMPLAINANT’S INCONSISTENT STATEMENTS WAS NOT ALLOWED; THE INQUIRY AFTER A POLLED JUROR INDICATED SHE MAY NOT HAVE AGREED WITH THE VERDICT WAS INSUFFICIENT (SECOND DEPT).
DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT MOVING TO SUPPRESS CREDIT CARDS SEIZED DURING THE EXECUTION OF A SEARCH WARRANT WHICH WERE NOT WITHIN THE SCOPE OF THE WARRANT; THE INCRIMINATING NATURE OF THE CREDIT CARDS WAS NOT IMMEDIATELEY APPARENT (SECOND DEPT). ​
AN ATTORNEY REPRESENTING A SCHOOL-EMPLOYEE-UNION-MEMBER IN DISCIPLINARY PROCEEDINGS PURSUANT TO A COLLECTIVE BARGAINING AGREEMENT CAN NOT BE LIABLE IN MALPRACTICE TO THE UNION MEMBER (SECOND DEPT).
PLAINTIFF BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 AND DID NOT SUBMIT ADMISSIBLE PROOF OF STANDING PURSUANT TO A MERGER, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Father’s Recording of Defendant’s Berating and Threatening Father’s Child Admissible Under the “Vicarious Consent” Theory (Father Vicariously Consented, on Behalf of the Child, to the Recording)/Variance Between Jury Instruction and Charges in the Indictment Was Harmless Error–No Possibility Defendant Was Convicted of a Theory Not Encompassed by the Indictment
Plaintiff Could Not Rely On Code Provisions Not Mentioned in Plaintiff’s Bill of Particulars to Defeat Summary Judgment
Variance Should Not Have Been Granted to Homeowner Who Built Swimming Pool In Violation of Set-Back Requirements

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

No “Extraordinary Circumstances” Existed to Justify Granting Primary... ALTHOUGH THE STATUTE STATES THAT EMPIRE ZONE REAL PROPERTY TAX CREDITS ARE AVAILABLE...