Opinion
2013-11-26
HONUA FIFTH AVENUE LLC, Plaintiff–Appellant, v. 400 FIFTH REALTY LLC, et al., Defendants–Respondents.
Brown Rudnick LLP, New York (Sigmund S. Wissner–Gross of counsel), for appellant. Greenberg Traurig LLP, New York (Steven Sinatra of counsel), for 400 Fifth Realty LLC, respondent.
Brown Rudnick LLP, New York (Sigmund S. Wissner–Gross of counsel), for appellant. Greenberg Traurig LLP, New York (Steven Sinatra of counsel), for 400 Fifth Realty LLC, respondent.
Quinn Emanuel Urquhart & Sullivan, LLP, New York (Marc L. Greenwald of counsel), for Unicredit S.P.A., respondent.
FRIEDMAN, J.P., RENWICK, FREEDMAN, FEINMAN, JJ.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered May 24, 2013, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion to amend the complaint to add claims of fraudulent inducement and aiding and abetting fraud, and applied a 0.18% interest rate rather than the statutory 9% rate in calculating the undertaking to be posted by defendant 400 Fifth Realty LLC to cancel the notice of pendency, unanimously affirmed, with costs.
While the proposed amended complaint alleges a misrepresentation, its allegations of fraudulent intent are conclusory and lacking in details sufficient to support the claim for fraudulent inducement ( seeCPLR 3016[b]; Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559–560, 883 N.Y.S.2d 147, 910 N.E.2d 976 [2009] ). Plaintiff also fails to sufficiently allege injury caused by the alleged fraud. It cannot allege injury because the undertaking to be posted by defendant 400 Fifth adequately secures it from the loss of its $45 million deposit ( see New York City Tr. Auth. v. Morris J. Eisen, P.C., 276 A.D.2d 78, 85, 715 N.Y.S.2d 232 [1st Dept.2000] [“a cause of action for fraud cannot accrue until every element of the claim, including injury, can truthfully be alleged”] ). Plaintiff's assertion that it made material concessions during the negotiation of the terms of the Third Amended Agreement in reliance on 400 Fifth's representation that it had invested $100 million of equity in the project is insufficient to plead injury because the alleged loss is speculative ( see Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 422, 646 N.Y.S.2d 76, 668 N.E.2d 1370 [1996] ). Absent a predicate claim for fraud, plaintiff's claim of aiding and abetting fraud also fails (Vilar v. Rutledge, 106 A.D.3d 489, 490, 964 N.Y.S.2d 527 [1st Dept.2013] ).
Because this action to foreclose on the vendee's lien is equitable in nature ( see Elterman v. Hyman, 192 N.Y. 113, 125–126, 84 N.E. 937 [1908] ), plaintiff is not entitled as of right to the 9% statutory interest rate in the calculation of 400 Fifth's undertaking ( seeCPLR 5001[a]; 5004; 6515 [1] ). The equitable vendee's lien extended only to the $45 million that plaintiff had advanced towards that purchase money ( see Elterman, 192 N.Y. at 125, 84 N.E. 937). To the extent the initial agreement provided for the crediting of interest to the purchase price of the property, and therefore to the lien ( see Royle Realty Co. v. Juhring, 21 A.D.2d 911, 251 N.Y.S.2d 786 [2d Dept.1964], affd. 16 N.Y.2d 566, 260 N.Y.S.2d 839, 208 N.E.2d 784 [1965] ), the Third Amended Agreement, which is the governing contract, does not provide for interest or credits to the purchase price aside from the $45 million that plaintiff paid.