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