Opinion
116-, 117 Index No. 654157/21 Case Nos. 2022–03937, 2022–04286
04-27-2023
Dan IZHAKY also known as Daniel Izhaky, Plaintiff–Appellant, v. Nina IZHAKY et al., Defendants–Respondents.
Philip A. Greenberg, P.C., New York (Philip A. Greenberg of counsel), for appellant. Mantel McDonough Riso, LLP, New York (Gerard A. Riso of counsel), for Nina Izhaky, respondent. Otterbourg P.C., New York (Adam C. Silverstein of counsel), for Rockledge Properties, LLC, respondent.
Philip A. Greenberg, P.C., New York (Philip A. Greenberg of counsel), for appellant.
Mantel McDonough Riso, LLP, New York (Gerard A. Riso of counsel), for Nina Izhaky, respondent.
Otterbourg P.C., New York (Adam C. Silverstein of counsel), for Rockledge Properties, LLC, respondent.
Renwick, A.P.J., Gonza´lez, Kennedy, Higgitt, JJ.
Judgment, Supreme Court, New York County (Michael L. Katz, J.), entered September 26, 2022, dismissing the complaint with prejudice, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about June 13, 2022, which granted defendants’ motions to dismiss the complaint with prejudice, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiff husband commenced this action for fraud and related claims, negligent misrepresentation, conspiracy, and fraud on the court, in connection with defendants’ purported actions during the related matrimonial action ( Izhaky v. Izhaky, Sup. Ct., New York County, Katz, J., index, 189 A.D.3d 617, 139 N.Y.S.3d 26 [2020] ). However, the causes of action fail to sufficiently allege the existence of reasonable or justifiable reliance, a material element of any fraud or negligent misrepresentation claim (see Oxbow Calcining USA Inc. v. American Indus. Partners, 96 A.D.3d 646, 650, 948 N.Y.S.2d 24 [1st Dept. 2012] ; Genger v. Genger, 152 A.D.3d 444, 445, 55 N.Y.S.3d 658 [1st Dept. 2017] ; Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 180, 919 N.Y.S.2d 465, 944 N.E.2d 1104 [2011] ). Nor did plaintiff allege how he changed his position or otherwise relied on any purported misrepresentations or omissions to his detriment, especially considering that he believed that the representations were untrue (see Waggoner v. Caruso, 68 A.D.3d 1, 6, 886 N.Y.S.2d 368 [1st Dept. 2009], affd 14 N.Y.3d 874, 903 N.Y.S.2d 333, 929 N.E.2d 396 [2010] ). The matrimonial court was well aware of, and rejected as irrelevant, plaintiff's claims that defendant had improperly attempted to obtain a greater share of the equitable distribution when it authorized certain debts to be satisfied from the proceeds of the sale of the marital residence. Nor did the complaint adequately allege damages, as plaintiff received exactly what the matrimonial court ordered (see generally Connaughton v. Chipotle Mexican Grill, Inc., 135 A.D.3d 535, 538, 23 N.Y.S.3d 216 [1st Dept. 2016], affd 29 N.Y.3d 137, 53 N.Y.S.3d 598, 75 N.E.3d 1159 [2017] ). As the court assumed the allegations in the complaint were true, plaintiff's argument that the court improperly converted the motions to ones for summary judgment is unavailing.
Plaintiff's argument that he is only seeking enforcement of the matrimonial court's June 2019 order pertaining to equitable distribution was not raised before the court and is improperly raised for the first time here (see Deutsche Bank Natl. Trust Co. v. Willock, 191 A.D.3d 576, 138 N.Y.S.3d 868 [1st Dept. 2021] ). Nor is there any such allegation in his complaint,
which sounds almost entirely in fraud and related causes of action.
Finally, it was not error for the court to dismiss the complaint with prejudice. Plaintiff provided no real indication of what he would have included to meet the relevant pleading standards. Accordingly, any leave to replead would have been futile ( Federated Fire Protection Sys. Corp. v. 56 Leonard St., LLC, 188 A.D.3d 414, 131 N.Y.S.3d 860 [1st Dept. 2020] ; Spitzer v. Schussel, 48 A.D.3d 233, 233, 850 N.Y.S.2d 431 [1st Dept. 2008] ). We have considered plaintiff's remaining arguments and find them unavailing.