Opinion
July 13, 1992
Appeal from the Supreme Court, Nassau County (Roncallo, J.).
Ordered that order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The complaint was insufficient to sustain a cause of action sounding in fraud. "In order to recover damages for fraud, 'the plaintiff must prove: (1) a misrepresentation of fact, (2) which was false and known to be false by the defendant, (3) that the representation was made for the purpose of inducing the other party to rely upon it, (4) the other party justifiably did so rely, (5) causing injury'" (Ruse v. Intra-Boro Two-Way Radio Taxi Assocs., 166 A.D.2d 641, quoting from Clearview Concrete Prods. Corp. v. S. Charles Gherardi, Inc., 88 A.D.2d 461, 467; see also, Channel Master Corp. v. Aluminum Ltd. Sales, 4 N.Y.2d 403). The plaintiffs failed to allege a knowing misrepresentation of fact. Their contentions with respect to a prior order dated March 9, 1990, are not properly before this court, as they failed to take an appeal from that order.
The Supreme Court properly declined to award attorneys' fees to the defendant pursuant to CPLR 8303-a. Thompson, J.P., Eiber, Pizzuto and Santucci, JJ., concur.