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HEARSAY EVIDENCE OF CHARGES OF WHICH SEX OFFENDER WAS ACQUITTED AND CHARGES WHICH WERE DISMISSED SHOULD NOT HAVE BEEN CONSIDERED, NEW TRIAL ORDERED.

The First Department determined respondent sex-offender was entitled to a new civil-commitment trial because the state’s expert relied on sex-offense charges of which respondent was acquitted and other sex-offense charges which were dismissed. The acquittal was completely off-limits. And no evidence to demonstrate respondent had committed the dismissed offenses was presented. The court noted that, in order to preserve a challenge to the sufficiency of the evidence in these Mental Hygiene Law proceedings, a motion for a directed verdict must be made at the close of the state’s proof:

 

Respondent failed to preserve his remaining claims that the trial evidence was legally insufficient to support the jury’s verdict. In order to challenge the sufficiency of the evidence on appeal, a party must first have moved for a directed verdict under CPLR 4401 … . Here, respondent never moved before the trial court for a directed verdict or otherwise challenged the legal sufficiency of the evidence. Thus, his claims are unpreserved for appellate review, and we decline to reach them.

… [T]he court erred in allowing the State’s experts, in explaining the basis for their opinions, to testify regarding two sets of sex offense charges against respondent that did not result in convictions (see Matter of State of New York v Floyd Y., 22 NY3d 95 [2013]). In Floyd Y., the Court held that hearsay basis evidence satisfies due process only if it is demonstrated to be reliable and its probative value outweighs its prejudicial effect (id. at 109). Here, one set of charges resulted in an acquittal, and so was categorically precluded from providing the basis for reliability (id. at 110). The second group of charges, which resulted in dismissal, also failed to meet the reliability threshold, because they were unaccompanied by indicia that respondent committed the charged acts notwithstanding the lack of a conviction (see id.). Accordingly, a new trial is required. Matter of State of New York v David S., 2016 NY Slip Op 00777, 1st Dept 2-4-16

 

MENTAL HYGIENE LAW (EVIDENCE OF CHARGES OF WHICH SEX OFFENDER WAS ACQUITTED AND CHARGES WHICH WERE DISMISSED SHOULD NOT HAVE BEEN CONSIDERED IN ARTICLE 10 TRIAL)/EVIDENCE (HEARSY EVIDENCE OF CHARGES OF WHICH SEX OFFENDER WAS ACQUITTED AND CHARGES WHICH WERE DISMISSED SHOULD NOT HAVE BEEN CONSIDERED IN ARTICLE 10 TRIAL)/APPEALS (TO PRESERVE CHALLENGE TO LEGAL SUFFICIENCY OF EVIDENCE IN A MENTAL HYGIENE LAW ARTICLE 10 SEX-OFFENDER CIVIL-COMMITMENT PROCEEDING, SEX OFFENDER MUST MOVE FOR A DIRECTED VERDICT)

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POLICE HAD NO REASON TO DETAIN DEFENDANT-PASSENGER AFTER TRAFFIC TICKET ISSUED TO DRIVER, STATEMENTS SHOULD HAVE BEEN SUPPRESSED; PROSECUTORIAL MISCONDUCT REQUIRED A NEW TRIAL AS WELL.

In reversing defendant’s conviction for criminal possession of a weapon, the Fourth Department determined a new trial was required because defendant’s statements should have been suppressed, and because of prosecutorial misconduct. Defendant was a passenger in a car which was stopped for having a suspended registration. After the driver was given a ticket, defendant asked if he could leave. He was told by the police he could not leave until an inventory search of the car was completed. Defendant’s statements were made subsequently. The Fourth Department held that, once the ticket was given to the driver, the police had no reason to detain defendant further. The Fourth Department addressed the prosecutorial misconduct in the interest of justice (despite the lack of preservation). With respect to prosecutorial misconduct, the court wrote:

 

During cross-examination, the prosecutor questioned the driver of the vehicle regarding an out-of-court conversation between them, asking her whether she came to his office and admitted that the defendant “[tried] to get [her] to come and take the blame for the gun.” After the witness denied for the second time that such a conversation had taken place, the prosecutor rhetorically asked, “[b]ut you were the one who was convicted of Scheme to Defraud, correct?” By challenging the witness with respect to the out-of-court conversation, the prosecutor both improperly interjected his personal opinion as to the truthfulness of the testimony and suggested to the jury that his own, unsworn version of events should be credited … .

In addition, instances of prosecutorial misconduct on summation deprived defendant of his right to a fair trial. The prosecutor improperly denigrated defendant’s case by referring to certain contentions as “[a]ll this nonsense,” made repeated non sequiturs distinguishing the case from the John F. Kennedy assassination, and asserted that the defense was “twisting things” and employing “tricks” … . The prosecutor compounded those statements by consistently commenting on witness credibility, calling the defense witnesses “a cast of characters,” “people com[ing] out of the woodwork,” and specifically referring to one witness as “a piece of work.” The prosecutor accused the defense witnesses of lying, and also argued that one could not believe a certain witness who had a lawyer advising her while testifying, stating that he “couldn’t tell if those were her words or her lawyer’s words when she was talking.” Not only did the prosecutor state his belief that witnesses had lied, he also alleged that the witnesses must have met secretly in order to plan and collude regarding their testimony. That was patently improper … .

In addition to criticizing defendant’s case and witnesses, the prosecutor also engaged in misconduct on summation by suggesting that an acquittal would require the jury to find a conspiracy by law enforcement … , by improperly suggesting that defendant bore a burden of proof … , and by misstating a key point of law regarding detention incident to a traffic stop… , People v Porter, 2016 NY Slip Op 00852, 4th Dept 2-5-16

CRIMINAL LAW (SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED, NO REASON TO DETAIN)/CRIMINAL LAW (PROSECUTORIAL MISCONDUCT REQUIRED NEW TRIAL)/EVIDENCE (SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED, NO REASON TO DETAIN)/SUPPRESSION (MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED, NO REASON TO DETAIN)/ATTORNEYS (PROSECUTORIAL MISCONDUCT REQUIRED NEW TRIAL)/PROSECUTORIAL MISCONDUCT (NEW TRIAL ORDERED)

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ACTION TO RESCIND A PURCHASE CONTRACT CONSTITUTED AN ANTICIPATORY BREACH OF THE CONTRACT WHICH RELIEVED SELLERS OF ANY FURTHER OBLIGATIONS AND ENTITLED SELLERS TO RETAIN THE DEPOSIT.

The First Department, in a full-fledged opinion by Justice Acosta, determined plaintiff-buyer’s action to rescind a real estate purchase contract before the final closing date constituted an anticipatory breach which relieved defendants-sellers of any further obligations called for by the purchase contract, including the acquisition of development approvals. The case raised two questions of first impression: (1) whether a rescission action by a buyer constitutes an anticipatory breach or repudiation of a purchase contract; and (2) whether such a breach relieves the seller of having to demonstrate it was ready, willing and able to close on the closing date. Both questions were answered in the affirmative and the sellers were entitled to retain the deposit and certain additional fees called for by the contract:

 

We … agree with the motion court that, by “commencing this lawsuit [before the Final Closing Date] and seeking the particular relief of rescission of the Amendment and abatement of the purchase price, [plaintiff] unequivocally notified the … defendants of its intention to renounce its contractual duties” … . Plaintiff did not simply seek to define its rights under the parties’ agreement; it sought to nullify the agreement entirely. * * *

The contract required defendants to obtain the development approvals as a condition precedent to closing, but defendants were absolved of that obligation upon plaintiff’s anticipatory breach. Whether defendants were in fact “on track” to obtain the approvals by the closing date is of no moment; the record demonstrates that they had been engaged in significant efforts to obtain the approvals until plaintiff’s repudiation, and it was possible, however unlikely, that they could have obtained the approvals before the Final Outside Closing Date (which the parties had been extending on a monthly basis). They were not required to continue to pursue the approvals after plaintiff repudiated the contract by commencing the instant action seeking rescission … . Once plaintiff commenced the instant action, it would have been futile and wasteful for defendants to continue to seek the approvals in preparation for a closing that plaintiff was tirelessly seeking to avoid. Princes Point LLC v Muss Dev. L.L.C., 2016 NY Slip Op 00783, 1st Dept 2-4-16

 

CONTRACT LAW (RESCISSION ACTION IS AN ANTICIPATORY BREACH)/REAL ESTATE (BUYER’S ACTION TO RESCIND A PURCHASE AGREEMENT IS AN ANTICIPATORY BREACH WHICH RELIEVES SELLER OF ANY FUTHER CONTRACTUAL OBLIGATIIONS)/RESCISSION (ACTION TO RESCIND A REAL ESTATE PURCHASE AGREEMENT IS AN ANTICIPATORY BREACH)/ANTICIPATORY BREACH (ACTION TO RESCIND A REAL ESTATE PURCHASE AGREEMENT IS AN ANTICIPATORY BREACH)/PURCHASE AGREEMENT, REAL ESTATE (ACTION TO RESCIND PURCHASE AGREEMENT IS AN ANTICIPATORY BREACH)

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BROKER NOT ENTITLED TO COMMISSION, MOTION TO SET ASIDE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED.

The Second Department determined the motion to set aside the jury verdict finding plaintiff was entitled to a broker’s commission for the sale of defendant’s property should have been granted. The court explained the relevant criteria:

 

To prevail on a cause of action to recover a commission, the broker must establish (1) that it is duly licensed, (2) that it had a contract, express or implied, with the party to be charged with paying the commission, and (3) that it was the procuring cause of the sale … . “[T]he duty assumed by the broker is to bring the minds of the buyer and seller to an agreement for a sale, and the price and terms on which it is to be made, and until that is done his right to commissions does not accrue” … . To establish that a broker was the procuring cause of a transaction, the broker must establish that there was “a direct and proximate link, as distinguished from one that is indirect and remote, between the bare introduction and the consummation” … . Where, as here, the broker is not involved in the negotiations leading up to the completion of the deal, the broker must establish that it ” created an amicable atmosphere in which negotiations proceeded or that [it] generated a chain of circumstances that proximately led to the sale'” … . * * *

Here, there was no valid line of reasoning which could have led to the conclusion that the plaintiff was the procuring cause of the sale.  Douglas Elliman, LLC v Silver, 2016 NY Slip Op 00675, 2nd Dept 2-3-16

 

REAL ESTATE (BROKER NOT ENTITLED TO COMMISSION)/BROKERS, REAL ESTATE (NOT ENTITLED TO COMMISSION)/COMMISSIONS, REAL ESTATE (BROKER NOT ENTITLED TO COMMISSION)

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FAILURE TO ADDRESS THE CREATION-OF-THE-DEFECT THEORY OF RECOVERY REQUIRED DENIAL OF DEFENDANT-VILLAGE’S SUMMARY JUDGMENT MOTION.

The Second Department, in this slip and fall case, determined that the village’s failure to address plaintiff’s allegation that the village created the dangerous condition (a one-inch higher portion of a sidewalk) required the denial of the village’s motion for summary judgment. [Another example of a defense summary judgment motion which did not affirmatively address every possible theory of recovery.] The court explained the relevant law:

 

“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . The bill of particulars alleged that the Village affirmatively created the dangerous condition which caused the accident. Therefore, in order to establish its prima facie entitlement to judgment as a matter of law, the Village had to demonstrate, prima facie, both that it did not have prior written notice of the defect, and that it did not create the defect … . The Village established, prima facie, that it did not have prior written notice of the defect, but it failed to establish, prima facie, that it did not affirmatively create the alleged defect … . Therefore, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact. McManus v Klein, 2016 NY Slip Op 00704, 2nd Dept 2-3-16

 

NEGLIGENCE (LIABILITY ALLEGED UNDER COMMON-LAW NEGLIGENCE  AND RES IPSA LOQUITUR, DEFENDANT’S FAILURE TO ADDRESS EVERY ELEMENT OF THOSE THEORIES REQUIRED DENIAL OF SUMMARY JUDGMENT)/RES IPSA LOQUITUR (DEFENDANT’S FAILURE TO ADDRESS EVERY ELEMENT RES IPSA LOQUITUR THEORY OF RECOVERY RREQUIRED DENIAL OF SUMMARY JUDGMENT)

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EXPERT AFFIDAVITS, SUBMITTED SOLELY ON THE ISSUE OF PROXIMATE CAUSE OF PLAINTIFF’S INJURIES, SHOULD HAVE BEEN ACCEPTED BY THE COURT, EVEN THOUGH THE EXPERTS WERE NOT QUALIFIED TO ASSESS WHETHER THE DEFENDANT CHIROPRACTOR DEVIATED FROM THE APPROPRIATE STANDARD OF CARE.

The Second Department, in a full-fledged opinion by Justice Dillon, determined affidavits by an orthopedist and a radiologist (Dr. Meyer and Dr. Coyne) submitted in support of defendant’s motion for summary judgment should have been accepted by Supreme Court as admissible evidence of proximate cause of plaintiff’s back injury, even though the orthopedist and radiologist were not qualified to offer an opinion on whether defendant chiropractor deviated from the appropriate standard of care. Supreme Court had rejected the affidavits on the ground the orthopedist and radiologist were not qualified to assess the level of care provided by the defendant chiropractor. However, the affidavits addressed only the issue of proximate cause, stating that plaintiff’s injuries pre-dated the alleged negligent treatment by the chiropractor. Because the assessment of proximate cause was within the orthopedist’s and radiologist’s areas of expertise, the affidavits were admissible. However, the denial of the defendant’s motion for summary judgment was affirmed because the defendant’s affidavit stating he did not deviate from the proper standard of chiropractic care was conclusory:

 

Physicians offering opinions in medical, dental, podiatric, chiropractic, or other specialty malpractice actions must establish their credentials in order for their expert opinions to be considered by courts. They do so by being specialists in the field that is the subject of the action, or if not specialists in the same field, then by possessing the requisite skill, training, education, knowledge, or experience from which it can be assumed that the opinion rendered is reliable … . Thus, when a physician offers an expert opinion outside of his or her specialization, a foundation must be laid tending to support the reliability of the opinion rendered … .

Here, the opinions of Dr. Meyer and Dr. Coyne would not be admissible on the issue of the defendant’s alleged deviation or departure from the standard of chiropractic care, as neither physician indicated any familiarity with the standards of chiropractic practice. However, the opinions of Dr. Meyer and Dr. Coyne were not proffered to address the issue of whether the defendant deviated or departed from the relevant chiropractic standard of care. Rather, the affirmations of both physicians were clearly and narrowly drawn to address only the separate element of proximate cause. Bongiovanni v Cavagnuolo, 2016 NY Slip Op 00638, 2nd Dept 2-3-16

 

NEGLIGENCE (MEDICAL MALPRACTICE, EXPERT AFFIDAVITS SHOULD HAVE BEEN ACCEPTED ON NARROW ISSUE OF PROXIMATE CAUSE)/MEDICAL MALPRACTICE (EXPERT AFFIDAVITS SHOULD HAVE BEEN ACCEPTED ON THE NARROW ISSUE OF PROXIMATE CAUSE)/EVIDENCE (MEDICAL MALPRACTICE, EXPERT AFFIDAVITS SHOULD HAVE BEEN ACCEPTED ON THE NARROW ISSUE OF PROXIMATE CAUSE)/EXPERT OPINION (MEDICAL MALPRACTICE, EXPERT AFFIDAVITS SHOULD HAVE BEEN ACCEPTED ON THE NARROW ISSUE OF PROXIMATE CAUSE)

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HOLDER OF SECOND MORTGAGE COULD PROPERLY SUE ONLY ON THE UNDERLYING DEBT WITHOUT BRINGING FORECLOSURE PROCEEDINGS.

The Second Department determined plaintiff bank, the holder of a second mortgage on defendant’s residence to secure an equity loan, could sue to recover on the underlying debt, without bringing foreclosure proceedings. Because defendant’s ownership and possession of his residence was not at risk in the lawsuit, the protections afforded a homeowner by the foreclosure procedure were not applicable:

 

Where a creditor holds both a debt instrument and a mortgage which is given to secure the debt, the creditor may elect either to sue at law to recover on the debt, or to sue in equity to foreclose on the mortgage (… see generally RPAPL 1301). Here, contrary to the Supreme Court’s determination, the clear and unequivocal language of the parties’ agreement did not limit the plaintiff’s options to recover in the event of a default, and did not require that the plaintiff commence only a foreclosure action … . …

Accordingly, the plaintiff was free to commence the instant action to recover damages, and the protections afforded to homeowners under the foreclosure laws are inapplicable to this action, since the defendant’s ownership and possession of his residence are not at risk in this lawsuit. Wells Fargo Bank, N.A. v Goans, 2016 NY Slip Op 00710, 2nd Dept 2-3-16

 

MORTGAGES (SECOND MORTGAGE TO SECURE HOME EQUITY LOAN, BANK CAN SUE ON DEBT WITHOUT BRINGING FORECLOSURE PROCEEDINGS)/FORECLOSURE (SECOND MORTGAGE TO SECURE HOME EQUITY LOAN, BANK CAN SUE ON DEBT WITHOUT BRINGING FORECLOSURE PROCEEDINGS)/HOME EQUITY LOAN (SECOND MORTGAGE TO SECURE HOME EQUITY LOAN, BANK CAN SUE ON DEBT WITHOUT BRINGING FORECLOSURE PROCEEDINGS)/DEBTOR-CREDITOR (SECOND MORTGAGE TO SECURE HOME EQUITY LOAN, BANK CAN SUE ON DEBT WITHOUT BRINGING FORECLOSURE PROCEEDINGS)

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DSS FAILED TO DEMONSTRATE DILIGENT EFFORTS TO STRENGTHEN PARENTAL RELATIONSHIP, TERMINATION OF FATHER’S PARENTAL RIGHTS REVERSED.

The Second Department, reversing Family Court, determined the Department of Social Services (DSS) did not make diligent efforts to strengthen the relationship between father and the children before seeking termination of the father’s parental rights on the ground of permanent neglect:

 

In proceedings to terminate parental rights based on permanent neglect, the agency must first establish, by clear and convincing evidence, that it made diligent efforts to encourage and strengthen the parental relationship with the child (see Social Services Law § 384-b[7][a]…). The efforts must include reasonable attempts at providing counseling, scheduling regular visitation with the child, providing other services to the parent to overcome the particular problems that separated the parent from his or her child, and informing the parent of his or her child’s progress (see Social Services Law § 384-b[7][f]…). The court “shall also consider the particular constraints, including but not limited to, limitations placed on family contact and the unavailability of social or rehabilitative services to aid in the development of a meaningful relationship between the parent and his or her child, that may impact the parent’s ability to substantially and continuously or repeatedly maintain contact with his or her child and to plan for the future of his or her child” (Social Services Law § 384-b[7][a]).

Here, DSS failed to meet its initial burden of demonstrating that it exercised diligent efforts to strengthen the parental relationship between the father and his children … . DSS’s evidence demonstrated that its caseworkers’ focus was on the mother’s relationship with the children, as she was the initial subject of the proceedings and the father was not a party thereto. Further, although the evidence adduced at the fact-finding hearing showed that the DSS caseworkers advised the father to seek unsupervised visitation with the children since the supervised visits were positive, the evidence also showed that DSS did not support such unsupervised visitation and was aware that the father’s access to the children was limited by the order of protection. Moreover, although DSS scheduled supervised visits between the father and the children and provided the father with notices of regularly scheduled permanency hearings and service plan reviews, it did little more to determine the particular problems facing the father with respect to the return of his children and did not make affirmative, repeated, and meaningful efforts to assist him in overcoming these handicaps before it commenced these proceedings … . Further, DSS’s evidence demonstrated that the father satisfied all requests that DSS made of him, which included attending a parenting class and marriage counseling, and showed himself to be a loving and appropriate parent at the supervised visitation sessions.  Matter of Gabriel B. S.-P. (Anonymous) (Franklin S. (Anonymous)), 2016 NY Slip Op 00645, 2nd Dept 2-3-16

 

FAMILY LAW (DSS DID NOT MAKE DILIGENT EFFORTS TO STRENGTHEN PARENTAL RELATIONSHIP, TERMINATION OF PARENTAL RIGHTS REVERSED)/PARENTAL RIGHTS (TERMINATION REVERSED, DSS DID NOT MAKE DILIGENT EFFORST TO STRENGTHEN RELATIONSHIP)/TERMINATION OF PARENTAL RIGHTS (REVERSED, DSS DID NOT MAKE DILIGENT EFFORTS TO STRENGTHENN RELATIONSHIP)

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FRAUD CAUSE OF ACTION STEMMING FROM THE SIGNING OF A DOCUMENT WITHOUT READING IT DISMISSED AS TIME BARRED; RELEVANT STATUTES OF LIMITATIONS AND BURDENS OF PROOF EXPLAINED.

The Second Department determined plaintiff’s cause of action for fraud was time-barred because it accrued when she signed the allegedly fraudulent document without reading it. The court explained the two statutes of limitations which apply to fraud and the related burdens of proof in a motion to dismiss:

 

An action alleging fraud must be commenced within “the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it” (CPLR 213[8]; see CPLR 203[g]…). “On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired” … . “The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period”… .

Where a plaintiff relies upon the two-year discovery exception to the six-year limitations period, ” [t]he burden of establishing that the fraud could not have been discovered prior to the two-year period before the commencement of the action rests on the plaintiff who seeks the benefit of the exception'” * * *  … [A]lthough “mere suspicion” will not substitute for knowledge of the fraudulent act …, a plaintiff may not ” shut his [or her] eyes to facts which call for investigation … .

Here, the gravamen of the plaintiff’s complaint is fraud in the factum, that she was induced to sign documents without being advised of their contents … . However, “[a] party who signs a document without any valid excuse for not having read it is conclusively bound’ by its terms” … . In this case, the plaintiff admitted that she neither read nor inquired about the contents of the documents upon which she relies to establish the fraud before she signed them, yet she failed to proffer any valid excuse for her failure to do so. Under these circumstances, the plaintiff is conclusively presumed to have agreed to the terms of those documents … and, accordingly, cannot establish that she lacked knowledge from which she could have discovered the alleged fraud with reasonable diligence … . Cannariato v Cannariato, 2016 NY Slip Op 00650, 2nd Dept 2-3-16

 

FRAUD (TWO STATUTES OF LIMITATIONS EXPLAINED)/FRAUD (SIGNING DOCUMENT WITHOUT READING IT)/CONTRACT LAW (SIGNING DOCUMENT WITHOUT READING CONSTITUTES AGREEMENT)/CIVIL PROCEDURE (PROOF BURDENS RE: MOTION TO DISMISS FRAUD CAUSE OF ACTION AS TIME-BARRED)/STATUTES OF LIMITATIONS (FRAUD)

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AIDING AND ABETTING FRAUD CAUSE OF ACTION AGAINST TITLE INSURANCE COMPANY PROPERLY DISMISSED, THE ALLEGATIONS WERE CONCLUSORY WITH NO SUPPORTING DETAIL.

The Second Department determined a petition to set aside a deed was properly dismissed as against the title insurance company (Fidelity). Fidelity issued a policy to the purchaser of real property which was part of an estate. The petition alleged Fidelity aided and abetted fraud, in that the sale of the insured property was done without the consent of the administrator or Surrogate’s Court. The Second Department held that, absent fraud, a third party could not sue Fidelity for negligence and the allegations of aiding and abetting fraud did not meet pleading requirements:

 

“[A] title company hired by one party is not, absent evidence of fraud, collusion, or other special circumstance, subject to suit for negligent performance by one other than the party who contracted for its services” … . Contrary to the administrator’s contention, the petition fails to state a cause of action against Fidelity to recover damages for aiding and abetting fraud … . “To plead a cause of action to recover damages for aiding and abetting fraud,” the pleading “must allege the existence of an underlying fraud, knowledge of the fraud by the aider and abettor, and substantial assistance by the aider and abettor in the achievement of the fraud” … . Here, the petition consists of bare, conclusory allegations, without any supporting detail, which do not meet the specificity requirements of CPLR 3016(b) to sufficiently plead the existence of an underlying fraud, knowledge thereof on the part of Fidelity, or substantial assistance in achievement of the fraud … . Matter of Woodson (Clarke), 2016 NY Slip Op 00698, 2nd Dept 2-3-16

 

FRAUD (CONCLUSORY ALLEGATIONS OF AIDING AND ABETTING FRAUD INSUFFICIENT)/CIVIL PROCEDURE (CONCLUSORY ALLEGATIONS OF AIDING AND ABETTING FRAUD INSUFFICIENT)/REAL ESTATE (TITLE INSURANCE COMPANY HIRED BY ONE PARTY, ABSENT FRAUD, CAN NOT BE SUED FOR NEGLIGENCE BY THIRD PARTY)/TITLE INSURANCE (TITLE INSURANCE COMPANY HIRED BY ONE PARTY, ABSENT FRAUD, CAN NOT BE SUED FOR NEGLIGENCE BY THIRD PARTY)

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