Kelsey v. Lenore R.

211 A.D.3d 1361

180 N.Y.S.3d 658

Michael N. KELSEY, Appellant,

v.LENORE R., Respondent.

533282

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 16, 2022

Decided and Entered: December 22, 2022

Michael N. Kelsey, Salt Point, appellant pro se.

Law Office of Bruce W. Slane, PC, White Plains (Jeremy D. Barberi of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Aarons, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Aarons, J. Appeal from an order of the Supreme Court (Richard M. Koweek, J.), entered March 9, 2021 in Columbia County, which, among other things, granted defendant's motion to dismiss the complaint.

Plaintiff commenced this action in Oneida County raising various fraud-based allegations against defendant. Defendant moved, in a pre-answer motion, to dismiss the complaint for failure to state a cause of action, among other grounds. While the motion was pending, Supreme Court (Clark, J.), transferred the action from Oneida County to Columbia County. Supreme Court (Koweek, J.) granted defendant's motion and dismissed the complaint. The court also sanctioned plaintiff in the amount of $3,000. Plaintiff appeals.

Turning first to plaintiff's procedural arguments, plaintiff contends that Supreme Court lacked jurisdiction to decide defendant's motion because the action was erroneously transferred from Oneida County to Columbia County. The order transferring the action, however, is not in the record, and there is no indication that plaintiff took any further action with respect to that order. Moreover, even if Columbia County was the improper venue, such fact did not deprive the court of its jurisdiction (see Kurfis v. Shore Towers Condominium, 48 A.D.3d 300, 300, 852 N.Y.S.2d 76 [1st Dept. 2008] ). Plaintiff also contends that the court erred in denying his request to convert defendant's pre-answer motion to dismiss to a summary judgment motion. A court "may treat" a motion under CPLR 3211(a) as a summary judgment motion after giving notice to the parties ( CPLR 3211[c] ).¹ This is a discretionary determination, and the court here did not abuse its discretion in declining plaintiff's request (see Siddiqui v. Nationwide Mut. Ins. Co., 255 A.D.2d 30, 34, 687 N.Y.S.2d 457 [3d Dept. 1999] ).

Regarding the merits, "[t]o establish a cause of action for fraud, plaintiff must demonstrate that defendant[ ] knowingly misrepresented a material fact upon which plaintiff justifiably relied and which caused plaintiff to sustain damages" ( Klafehn v. Morrison, 75 A.D.3d 808, 810, 906 N.Y.S.2d 347 [3d Dept. 2010] ; see McGovern v. Best Bldg. & Remodeling, 245 A.D.2d 925, 926, 666 N.Y.S.2d 854 [3d Dept. 1997] ). A fraud claim may also stem from "acts of concealment where the defendant had a duty to disclose material information" ( Kaufman v. Cohen, 307 A.D.2d 113, 119–120, 760 N.Y.S.2d 157 [1st Dept. 2003] ; see Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 179, 919 N.Y.S.2d 465, 944 N.E.2d 1104 [2011] ). That said, when presented with a motion to dismiss for failure to state a cause of action, "the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference" ( EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 [2005] ). Furthermore, a fraud claim requires that "the circumstances constituting the wrong ... be stated in detail" ( CPLR 3016[b] ; see Rotterdam Ventures v. Ernst & Young, 300 A.D.2d 963, 964, 752 N.Y.S.2d 746 [3d Dept. 2002] ; Briand Parenteau Assoc. v. HMC Assoc., 225 A.D.2d 874, 876, 638 N.Y.S.2d 817 [3d Dept. 1996] ).

The gist of plaintiff's complaint was that, during a phone call between plaintiff and defendant, plaintiff admitted to certain conduct, which ultimately led to his arrest and conviction of multiple crimes, and that defendant concealed from plaintiff that such call was a controlled call involving State Police and was being recorded and monitored. Accepting the allegations in the complaint as true, they did not satisfy the threshold imposed by CPLR 3016(b). In the absence of specific allegations of specific material misrepresentations by defendant, any justifiable reliance thereon or that defendant had a duty to disclose to plaintiff that the State Police was monitoring the call, the complaint was correctly dismissed (see Greg Beeche, Logistics, LLC v. Cross Country Constr., LLC, 210 A.D.3d 1158, 178 N.Y.S.3d 231 [3d Dept. 2022] ; He v. Apple, Inc., 189 A.D.3d 1984, 1985, 139 N.Y.S.3d 409 [3d Dept. 2020] ; Ressis v. Herman, 122 A.D.2d 516, 517, 505 N.Y.S.2d 266 [3d Dept. 1986] lv dismissed 69 N.Y.2d 1017, 517 N.Y.S.2d 937, 511 N.E.2d 80 [...