Opinion
Index Number: 713183/2019
04-27-2020
GUI QIN CHEN, Plaintiff, v. LI ZHU CHEN, and HONG YUNG CHAU, Defendants.
NYSCEF DOC. NO. 38 Present: Motion Date: November 18, 2019 Motion Seq. No.: 1
The following numbered papers were read on this motion by defendant, Li Zhu Chen, seeking dismissal of plaintiff's case as against her, for failing to state a cause of action, pursuant to CPLR 3211 (a)(7), and on the ground that there is another action pending, pursuant to CPLR 3211 (a)(4).
| PapersNumbered | |
|---|---|
| Notice of Motion - Affirmation - Exhibit | E6-E17 |
| Answering Affirmation - Exhibits | E20-E22 |
| Reply Affirmation | E37 |
Upon the foregoing papers, it is ordered that defendant's motion is determined as follows:
Plaintiff commenced this action to recover damages for an alleged conspiracy "to displace her as beneficiary" of the proceeds of a life insurance policy "by submitting the 2016 Beneficiary Designation Form, which ... is a forgery." The decedent, Chit Hing Chau, held a life insurance policy with Metropolitan Life Insurance Company (MetLife) in the face amount of $300,000.00. The original policy was issued to Chau in 1998, with his wife, Sau Wan Cheung, as the primary beneficiary, and their daughter, defendant Hong Yung Chau, as the sole contingency beneficiary. In 2012, Chau designated plaintiff, Qui Qin Chen, his girlfriend, as the only beneficiary under the subject life insurance policy and changed the address for the policy from his marital residence in Queens to an address in Manhattan. Thereafter, Chau moved to China, where he died on May 8, 2017, never having returned to the United States.
It is alleged that on August 10, 2016, Chau executed a Change in Beneficiary Designation form, again designating his wife as beneficiary, and his daughter, Hong Yung Chau, as the contingent beneficiary, and changed the address of the policy back to his marital residence in Queens. Defendant, Li Zhu Chen, a former insurance agent for MetLife, claims to have submitted the 2016 Change in Beneficiary form on behalf of decedent to MetLife. At the time the Change in Beneficiary form was executed, the decedent was residing in China. Li Zhu Chen allegedly brought to him, and witnessed the decedent's signature on, the Change in Beneficiary form while both were in China, and subsequently filed it with MetLife when she returned to the United States. Plaintiff alleges that the signature on the 2016 Change in Beneficiary form was forged by defendant, Hong Yung Chau, and that defendant, Li Zhu Chen, conspired with the daughter, Chau, to submit the "forged" Change in Beneficiary form to deprive plaintiff of the proceeds of the insurance policy.
Plaintiff commenced this action on or about August 2019, alleging fraud; aiding and abetting fraud; and conspiracy to commit fraud causes of action against defendant, Li Zhu Chen. Defendant, Chen, appeared and answered. Defendant, Chen, moves to dismiss plaintiff's complaint against her for failing to state a cause of action, pursuant to CPLR 3211 (a) (7), and based upon another action pending, pursuant to CPLR 3211 (a) (4). Plaintiff opposes.
The first branch of defendant's motion seeks dismissal of plaintiff's First Cause of Action, alleging fraud against Li Zhu Chen. Initially, the sole criterion to dismiss a complaint is whether the pleading, and the factual allegations contained within its four corners, manifests any cause of action cognizable at law (see Gaidon v. Guardian Life Ins. Co. of America, 94 NY2d 330 [1999]; Guggenheimer v Ginzburg, 43 NY2d 268 [1977]). "To withstand dismissal, the requisite elements of the cause of action must be discernable from the pleadings, and the complaint must give notice of the transactions and occurrences to be proved" (CPLR 3013; see Dolphin Holdings, Inc. v Gander & White Shipping, Inc., 122 AD3d 901[2014]).
On a motion to dismiss the complaint, pursuant to CPLR 3211 (a) (7), for failure to state a cause of action, the court must afford the pleading a liberal construction, accept as true all the facts alleged therein, give the nonmoving plaintiff the benefit of all favorable inferences, and determine only whether the alleged facts fit within any cognizable legal theory, and not whether plaintiff can ultimately prove such facts (see J.P.Morgan Securities, Inc. v Vigilant Ins. Co., 21 NY3d 324 [2013]; People ex rel. Cuomo v Coventry First LLC, 13 NY3d 108 [2009]; Odierna v RSK, LLC, 171 AD3d 769 [2d Dept 2019]; Ramirez v Donado Law Firm, P.C., 169 AD3d 940 [2d Dept 2019]; Webster v Sherman, 165 AD3d 738 [2d Dept. 2018]; Murphy v Department of Educ. of the City of N. Y., 155 AD3d 637 [2017]; Bank of New York Mellon Trust Co., N.A. v Universal Dev., LLC, 136 AD3d 850 [2016]). A motion to dismiss merely addresses the adequacy of a pleading and does not reach the substantive merits of plaintiff's cause of action (see Kaplan v New York City Dep't. of Health and Mental Hygiene, 142 AD3d 1050 [2016]; Lieberman v Green, 139 AD3d 815 [2016]). Whether the pleading will later survive a summary judgment motion, or plaintiff will ultimately prevail on the claims, is not relevant on a pre-discovery motion to dismiss (see Lieberman v Green, 139 AD3d 815; Tooma v Grossbarth, 121 AD3d 1093 [2014]).
A CPLR 3211 (a) (7) motion may be employed to dispose of an action in which the plaintiff has failed to state a claim cognizable at law, or an action in which plaintiff has identified a cognizable cause of action, but failed to assert a material allegation necessary to support the cause of action.
The elements of a cause of action to recover damages for fraud are " 'a misrepresentation or a material omission of fact which was false and known to be false by [the] defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury' " (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178 [2011], quoting Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]). Moving defendant contends that the necessary material allegation of "reliance" has not been properly pleaded herein, as same was allegedly made to a third party. The complaint states that "Defendant, LI ZHU CHEN, committed fraud by making material misrepresentations of fact to MetLife." Plaintiff's reliance on the cases of Buxton Mfg. Co. v Valiant Moving & Stor., 239 AD2d 452 (2d Dept 19970 and Ruffing v Union Carbide Corp., 308 AD2d 526 (2d Dept 2003), for the determination that fraud may exist when a misrepresentation is made to a third party, resulting in injury to the plaintiff, is unavailing, as those opinions were factually overruled by the decisions in Pasternack v Laboratory Corp of America Holdings, 27 NY3d 817 (2016), and its progeny. As a result, in the case at bar, plaintiff failed to state a cause of action sounding in fraud based on its allegation that defendant's misrepresentations were made to third party, MetLife, because she failed to also allege that the third party "acted as a conduit to relay the false statement to plaintiff, who then relied on the misrepresentation to his detriment" (Pasternack v Laboratory Corp of America Holdings, 27 NY3d at 828; see Robles v Patel, 165 AD3d 858 [2d Dept 2018]; New York Tile Wholesale Corp. v Thomas Fatato Realty Corp., 153 AD3d 1351 [2d Dept 2017]). Consequently, the branch of defendant's motion seeking dismissal of the First Cause of Action, for fraud against Li Zhu Chen, is granted.
The motion also seeks to dismiss the remaining two causes of action against defendant, Li Zhu Chen, i.e., aiding and abetting fraud, and conspiracy to commit fraud. "To recover for aiding and abetting fraud, the plaintiff must plead 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" (Fox Paine & Co., LLC v Houston Cas. Co., 153 AD3d 678, 679 [2d Dept 2017]; see Land v Forgione, 177 AD3d 862 [2d Dept 2019]; Betz v Blatt, 160 AD3d 689 [2d Dept 2018]). Here, the complaint did not meet the specificity requirements to sufficiently plead the existence of an underlying fraud, and, as a result, the cause of action for aiding and abetting cannot survive, and this branch of the motion to dismiss plaintiff's Second Cause of Action is granted.
The branch of defendant's motion seeking dismissal of plaintiffs' cause of action for "conspiracy to commit fraud," is granted. New York does not recognize an independent tort cause of action for civil conspiracy (see Vetro v Middle Country Cent. School Dist., 148 AD3d 964 [2d Dept 2017]; Oseff v Scotti, 130 AD3d 797 [2015]; Rose v Different Twist Pretzel, Inc., 123 AD3d 897 [2014]).
The branch of defendant's motion seeking to dismiss plaintiff's complaint pursuant to CPLR 3211 (a) (4), which provides that a court may dismiss an action where "there is another action pending between the same parties for the same cause of action," is denied as moot. Plaintiff's remaining contentions and arguments are either without merit or need not be addressed in light of the foregoing determinations. Accordingly, defendant, Li Zhu Chen's motion to dismiss, pursuant to CPLR 3211 (a)(7), is granted, and the complaint is dismissed as against said defendant.
This shall constitute the Decision and Order of the Court. Dated: April 27, 2020
/s/_________
LOURDES M. VENTURA, J.S.C.