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THE INSURER PRESENTED EVIDENCE THE BOARD’S RULING THAT THE INSURER WAS THE RESPONSIBLE CARRIER WAS BASED UPON FRAUDULENT DOCUMENTATIOIN; IT WAS ABUSE OF DISCRETION TO DENY THE INSURER’S APPLICATION FOR REVIEW (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the Board abused its discretion when denying an insurer’s (Everest’s) application for a review of a ruling that the insurer was the responsible carrier. That ruling was plausibly argued to have been based upon fraudulent documentation:

… [T]he proof submitted by Everest in support of its administrative appeal strongly suggests that the certificate of insurance provided to the Board was not authentic, and, based upon the limited record before us, the certificate appears to have been an important, if not the only, factor in the WCLJ’s [Workers’ Compensation Law Judge’s] decision as to Everest. In other words, Everest has brought to the Board’s attention the strong possibility that it has issued a decision based perhaps entirely upon fraudulent documentation. … Under these facts, “[i]t is not an adequate answer to say that this kind of determination is usually discretionary” … , and, in our view, the very purpose of the discretion afforded to the Board is to grant relief in circumstances such as these … . … [W]e find that the Board abused its discretion in denying Everest’s application for review … . Matter of Salinas v Power Servs. Solutions LLC, 2021 NY Slip Op 07321, Third Dept 12-23-21

 

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THE AIDING AND ABETTING FRAUD AND JUDICIARY LAW CAUSES OF ACTION WERE PRECLUDED BY THE NOERR-PENNINGTON DOCTRINE; THE FRAUDULENT INDUCEMENT CAUSE OF ACTION DID NOT ALLEGE RELIANCE (SECOND DEPT).

The Second Department determined the aiding and abetting fraud and Judiciary Law 487 causes of action were barred by the Noerr-Pennington doctrine (see Mine Workers v Pennington, 381 US 657; Eastern Railroad Presidents Conference v Noerr Motor Freight, Inc., 365 US 127), and the complaint did not state a cause of action for fraudulent inducement:

“The Noerr-Pennington doctrine protects the right under the First Amendment to the United States Constitution to petition the government for governmental action, including through litigation and activity incidental to litigation” … . …

… Supreme Court properly concluded that the causes of action alleging that the defendants aided and abetted fraud and violated Judiciary Law § 487 were barred by the Noerr-Pennington doctrine. The Noerr-Pennington doctrine applied to these causes of action insofar as they were based upon litigation and activities that were incidental to litigation, and the pertinent allegations did not fit within either the “sham” or the “corruption” exceptions to the Noerr-Pennington doctrine … . …

Where a cause of action is based upon misrepresentation or fraud, “the circumstances constituting the wrong shall be stated in detail” (CPLR 3016[b]). Here, the allegations in the complaint failed to sufficiently allege justifiable reliance, and therefore failed to state a cause of action for fraudulent inducement … . Louie’s Seafood Rest., LLC v Brown, 2021 NY Slip Op 06167, Second Dept 11-10-21

 

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THE GRANTOR WAS NOT THE SOLE HEIR OF THE TITLE HOLDER; THEREFORE THE DEED PURPORTING TO TRANSFER A 100% INTEREST IN THE PROPERTY WAS VOID AB INITIO (SECOND DEPT).

The Second Department determined a deed was null and void because the grantor was not the sole heir of the title holder:

By a deed dated July 25, 2012, Colie Gallman, Jr., alleged to be the sole heir of Lillian Hudson, purportedly transferred his 100% interest in certain real property owned by Hudson to the defendant. In January 2015, the plaintiff commenced this action against the defendant seeking a judgment declaring that the July 25, 2012 deed is null and void. * * *

A misrepresentation in a deed that the seller of the property is the sole heir of the holder of the title to the property renders the conveyance void ab initio … . Here, the evidence and affidavits submitted by the plaintiff to the Supreme Court during the course of motion practice in this action established that Colie Gallman, Jr., was not the sole heir of Hudson as of the date of the subject deed, and thus, the deed purporting to convey all of the interest in the subject property is void ab initio … . In opposition, the defendant failed to raise a triable issue of fact. 23A Vernon, LLC v Oneal, 2021 NY Slip Op 05017, Second Dept 9-22-21

 

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IN THIS “RESIDENTIAL MORTGAGE BACKED SECURITIES” AND “COLLATERALIZED DEBT OBLIGATION” ACTION, PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER DEFENDANTS’ FRAUD, AS OPPOSED TO THE 2008-2009 FINANCIAL CRISIS, CAUSED PLAINTIFF’S LOSS, AND WHETHER AN OMISSION ON DEFENDANTS’ PART WAS AN ACTIONABLE MISREPRESENTATION; SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, over an extensive dissent, determined defendants’ motion for summary judgment in this “residential mortgage backed securities (RMBS)” and “collateralized debt obligation (CDO)” fraud action should not have been granted. The plaintiff raised questions of fact whether defendants’ fraud, as opposed to the 2008-2009 financial crisis, caused plaintiff’s loss, and whether an omission on defendants’ part constituted an actionable misrepresentation:

“The empirical evidence shows that Magnetar deals in general, and Auriga in particular, performed worse than other mezzanine CDOs issued during the same period.” For example, the [plaintiff’s] expert noted, “Magnetar deals experienced events of default [‘EODs’] on average approximately four months faster than other mezzanine CDO bonds issued in 2006 and 2007” and Auriga “failed 175 days earlier than the average mezzanine non-Magnetar deal.” The expert further explained, “[a]ll 26 mezzanine Constellation deals experienced an [EOD.] This 100 percent EOD rate contrasts with an EOD rate of 82 percent . . . among non-Magnetar subprime CDOs issued in 2006 and 2007. The difference between these two EOD rates . . . is statistically significant.” * * *

With regard to lack of justifiable reliance on misrepresentations, the other ground on which the motion court granted summary judgment, plaintiff’s fraud claim depends both on an affirmative representation (that Auriga’s collateral manager would independently select the collateral) and an omission or concealment (that defendants structured Auriga to facilitate Magnetar’s net-short strategy). * * *

… [T]o the extent plaintiff relies on an omission, its claim is not barred. … [T]he omission in the instant action came from defendants … . Loreley Fin. (Jersey) No. 28, Ltd. v Merrill Lynch, Pierce, Fenner & Smith Inc., 2021 NY Slip Op 04413, First Dept 7-15-21

 

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THE DESIGNATING PETITIONS INCLUDED THE NAMES OF CANDIDATES WHO DID NOT AGREE TO BE LISTED; THE PETITIONS WERE THEREFORE PROPERLY INVALIDATED ON THE GROUND OF FRAUD (SECOND DEPT).

The Second Department determined Supreme Court properly invalidated appellants’ designating petitions because they included the names of candidates who did not consent to be listed on the petitions:

… [A] designating petition will be invalidated upon a showing that the entire petition is permeated with fraud … . Here, the petitioners demonstrated by clear and convincing evidence that the designating petitions of the appellants … were permeated with fraud, as it is undisputed that those designating petitions included the names of several candidates who never affirmatively agreed to be listed thereon, and the hearing evidence amply supported the Supreme Court’s determination that their inclusion was intentional and designed to mislead others. Thus, these designating petitions were properly invalidated on the ground of fraud … . Matter of Ariola v Maio, 2021 NY Slip Op 03988, Second Dept 6-17-21

 

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PLAINTIFF’S COMPLAINT ALLEGING THE LANDLORD ENGAGED IN A FRAUDULENT SCHEME TO DEREGULATE APARMTENTS WAS PROPERLY DISMISSED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Hinds-Radix, determined plaintiff’s complaint alleging the landlord engaged in a fraudulent scheme to deregulate apartments was properly dismissed. The opinion is too complex to fairly summarize here:

… [T]he deregulation of the plaintiff’s apartment was made in good faith … . Further, the late registration of the apartment as rent-stabilized, only after notification by the DHCR [Department of Housing and Community Renewal] of a change in the law several years in the making, does not indicate that [defendant landlord] was engaged in a fraudulent scheme to deregulate the apartment.

“Fraud consists of ‘evidence [of] a representation of material fact, falsity, scienter, reliance and injury'” … . The elements of fraud must be pleaded, and each element must be set forth in detail (see CPLR 3016[b] … ). That requirement was not met in this case.

There are instances in which failure to timely register an apartment as rent stabilized could constitute evidence of fraud. Prior to 2016, and the DHCR’s blanket notification to landlords of the change in the law, there were landlords involved in litigation over failure to register apartments as rent stabilized who nevertheless persisted in that practice … ; attempted to obfuscate the regulatory status of the apartment … ; pressured and misled tenants … ; or even went so far as to engage in misrepresentations as to whether improvements were in fact made … . It is clear that the plaintiff’s apartment was in fact rent stabilized, but that fact was not evidence of fraud, and allegations of fraud based upon speculation are insufficient … . Gridley v Turnbury Vil., LLC, 2021 NY Slip Op 03577, Second Dept 6-9-21

 

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DEFENDANT ATTORNEY WAS UNABLE TO DEMONSTRATE PLAINTIFFS LEARNED OF DEFENDANT’S ALLEGED FRAUD MORE THAN TWO YEARS BEFORE THE ACTION WAS COMMENCED; THE STATUTE OF LIMITATIONS FOR THE UNJUST ENRICHMENT AND AIDING AND ABETTING BREACH OF FIDUCIARY DUTY IS SIX YEARS BECAUSE OF THE ALLEGATIONS OF FRAUD (FIRST DEPT).

The First Department determined the fraud, unjust enrichment and aiding and abetting breach of fiduciary duty causes of action were timely brought against defendant attorney. Defendant attorney represented a party who was found to have defrauded plaintiffs in an arbitration resulting in a $56,4 million judgment. Plaintiffs alleged the attorney’s participation in the fraud was not discovered until the arbitration proceedings:

The limitations period for fraud is the greater of six years from the date of the fraud or two years from the time when, with reasonable diligence, the plaintiff could have uncovered the fraud (CPLR 213[8] … ). In order to prevail, the defendant must show that there is no issue of fact under either prong. Here, defendant failed to show dispositively that plaintiffs were in possession of facts that would have triggered inquiry notice under CPLR 213(8) more than two years before the action was commenced … . …

Nor are plaintiff’s unjust enrichment or aiding and abetting breach of fiduciary duty claims time-barred. Both claims are subject to the six-year statute of limitations because they are based on allegations of actual fraud (CPLR 213[8] …). Sabourin v Chodos, 2021 NY Slip Op 03392, First Dept 5-27-21

 

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THE COMPLAINT STATED A CAUSE OF ACTION FOR FRAUD BASED UPON DEFENDANTS’ ALLEGED INFLATION OF THE VALUE OF THE BUSINESS PURCHASED BY PLAINTIFF; AND THE COMPLAINT STATED A CAUSE OF ACTION FOR BREACH OF CONTRACTUAL WARRANTIES WHICH DID NOT DUPLICATE THE FRAUD CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint adequately alleged fraud (inflating the value of defendants’ business which was purchased by plaintiff) and breach of contract:

… [T]he key … element of a claim for fraudulent concealment — duty to disclose — is met here, given the hidden nature of the fraud, which turned on falsified records and bribed auditors, and the practical impossibility of discovering the fraud through ordinary diligence … .

Defendants’ alleged deception also breached numerous warranties set forth in the governing stock purchase agreement, including that … financial statements were materially complete and correct, that its [earning] projections were reasonable and made in good faith, that it had no material undisclosed liabilities, and that it conducted its business in compliance with applicable law. Nevertheless, “[a] warranty is not a promise of performance, but a statement of present fact. Accordingly, a fraud claim can be based on a breach of contractual warranties notwithstanding the existence of a breach of contract claim” … . Thus, the fraud claim does not duplicate the contract claim … . VXI Lux Holdco, S.A.R.L. v SIC Holdings, LLC, 2021 NY Slip Op 03294, First Dept 5-25-21

 

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THE DESIGNATING PETITION WAS PERMEATED BY FRAUD AND SHOULD HAVE BEEN INVALIDATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the designating petition was permeated by fraud and should have been invalidated:

… [P]etitioner submitted clear and convincing evidence demonstrating that several subscribing witnesses attested to many signatures on the designating petition that they had not actually witnessed, and thus we agree with petitioner that the candidate’s designating petition is permeated with fraud. The parties correctly agree that the candidate was required to obtain signatures from 600 voters registered in the Democratic Party … . Numerous subscribing witnesses, acting on the candidate’s behalf, gathered 1,657 signatures, approximately 700 of which the Board invalidated. Petitioner challenged the signatures collected by five subscribing witnesses, who collected the overwhelming majority of the signatures on the designating petition; indeed, only slightly less than 200 valid signatures were collected by all of the other people who circulated petitions for the candidate. Supreme Court concluded that numerous signatures collected by those five subscribing witnesses were fraudulently procured for various reasons, including that there was no such voter, the voter had died, the voter had signed the designating petition more than once, or the voter was not the person who signed the designating petition. …

It is well settled that, “where the court finds misrepresentations in numerous instances, as it finds here, and nothing is [established] in rebuttal, it may well indulge in the presumption that there were many other misrepresentations and irregularities which time did not permit to be uncovered … . ” Matter of Saunders v Mansouri, 2021 NY Slip Op 03157, Fourth Dept 5-18-21

 

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PLAINTIFF RAISED GROUNDS TO INVALIDATE A RELEASE IN THIS TRAFFIC ACCIDENT CASE BASED ON FRAUD (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff in this traffic accident case raised grounds to invalidate a release plaintiff had signed  based upon fraud:

Defendants met their initial burden of establishing that they were released from any claims by submitting the release executed by plaintiff … . The burden thus shifted to plaintiff to show that the release was voidable based on fraud … . Plaintiff submitted an affidavit in which she averred that, in the midst of negotiating a settlement of her personal injury claim for pain and suffering, a representative of Morgan’s insurer told her that, “under New York Law, [plaintiff] would not be able to sue . . . because [she] did not have any major surgeries or life-threatening injuries.” Plaintiff further averred that, based on those representations, she agreed to sign the release in exchange for $1,500. Accepting plaintiff’s allegations as true … , we conclude that plaintiff sufficiently alleged grounds on which to invalidate the release … . Cain-Henry v Shot, 2021 NY Slip Op 02961, Fourth Dept 5-7-21

 

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