ANS 1 Corp. v. Yosef

Appellate Division of the Supreme Court of New York

ANS 1 Corp. v. Yosef

Appellate Division of the Supreme Court of the State of New York·Decided August 12, 2026·No. 2024-07289·Published

Opinion

ANS 1 Corp. v Yosef

2026 NY Slip Op 04918

August 12, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

ANS 1 Corp., et al., plaintiffs-respondents,

v

Roi Yosef, et al., defendants, The Rosso Law Firm, P.C., defendant third-party plaintiff-appellant; Noah Goldstein, third-party defendant-respondent, et al., third-party defendant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2024-07289, (Index No. 726130/22)

Lara J. Genovesi, J.P.

Linda Christopher

Janice A. Taylor

Donna-Marie E. Golia, JJ.

Leon I. Behar, P.C., New York, NY, for defendant third-party plaintiff-appellant.

Rothkrug Rothkrug & Spector, LLP, Great Neck, NY (Simon H. Rothkrug of counsel), for plaintiffs-respondents.

Law Offices of Noah Goldstein, P.C., Valley Stream, NY (Noah Goldstein pro se of counsel), for third-party defendant-respondent.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendant third-party plaintiff appeals from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), dated June 18, 2024. The order, insofar as appealed from, denied, as academic, that branch of the defendant third-party plaintiff's motion which was to vacate the amended complaint, denied those branches of the defendant third-party plaintiff's motion which were pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against it and for summary judgment on the third-party complaint insofar as asserted against the third-party defendant Noah Goldstein, and granted the cross-motion of the third-party defendant Noah Goldstein for summary judgment dismissing the third-party complaint insofar as asserted against him.

ORDERED that the appeal from so much of the order as denied that branch of the defendant third-party plaintiff's motion which was to vacate the amended complaint is dismissed; and it is further,

ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the defendant third-party plaintiff's motion which were pursuant to CPLR 3211(a) to dismiss the second and sixth causes of action insofar as asserted against it, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the third-party defendant Noah Goldstein payable by the defendant third-party plaintiff.

In December 2022, the plaintiffs commenced this action related to a sale of certain real property (hereinafter the subject property), owned by the plaintiff ANS 1 Corp. (hereinafter [*2]ANS), in October 2021, to the defendant Georgia A. Samuels-O'Connor. The plaintiffs alleged that the sale took place without the required consent of Alon Kissos, who they claimed held a 50% interest in ANS pursuant to a shareholder agreement, effective July 1, 2019 (hereinafter the July agreement). According to the plaintiffs, the defendant third-party plaintiff, The Rosso Law Firm, P.C. (hereinafter Rosso), represented ANS as legal counsel in the sale of the subject property and was aware of Kissos's interest and required consent. In May 2023, the plaintiff filed an amended complaint without first obtaining leave of court.

Thereafter, Rosso moved to vacate the amended complaint, pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against it, contending that the July agreement was fraudulent and that pursuant to the legitimate shareholder agreement, the sole shareholder of ANS was the defendant Roi Yosef, and for summary judgment on the third-party complaint insofar as asserted against the third-party defendant Noah Goldstein. Goldstein cross-moved for summary judgment dismissing the third-party complaint insofar as asserted against him. In an order dated June 18, 2024, the Supreme Court, inter alia, denied, as academic, that branch of Rosso's motion which was to vacate the amended complaint, denied those branches of Rosso's motion which were pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against it and for summary judgment on the third-party complaint insofar as asserted against Goldstein, and granted Goldstein's cross-motion. Rosso appeals.

Initially, the appeal from so much of the order as denied, as academic, that branch of Rosso's motion which was to vacate the amended complaint must be dismissed. "It is the obligation of the appellant to assemble a proper record on appeal" (Matter of Progressive Specialty Ins. Co. v Seng Jin Jang, 211 AD3d 736, 736). "An appellant's record must contain all of the relevant papers that were before the Supreme Court" (id.). Here, the Supreme Court "denied as moot" that branch of Rosso's motion which was to vacate the amended complaint, explaining that, in an order dated December 20, 2023, the court had already granted the plaintiffs' motion for leave to file an amended complaint. However, Rosso apparently did not appeal from the order dated December 20, 2023, and did not include as part of the record on this appeal either that order or the underlying motion papers. Under the circumstances, the record is inadequate to allow this Court to render an informed decision as to whether that branch of Rosso's motion which was to vacate the amended complaint was properly denied as academic (see Matter of Progressive Specialty Ins. Co. v Seng Jin Jang, 211 AD3d 736, 736-737; Marcantonio v Picozzi, 46 AD3d 522, 523). Accordingly, we dismiss the appeal from so much of the order dated June 18, 2024, as denied, as academic, that branch of Rosso's motion which was to vacate the amended complaint.

"Although an independent cause of action for civil conspiracy is not recognized in this State, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort and establish that those actions were part of a common scheme" (Philip S. Schwartzman, Inc. v Pliskin, Rubano, Baum & Vitulli, 215 AD3d 699, 703 [internal quotation marks omitted]). Thus, a cause of action alleging civil conspiracy to commit fraud "stands or falls with" properly pleaded allegations of a fraud (see id.; cf. Nabatkhorian v Nabatkhorian, 127 AD3d 1043, 1044).

"The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages" (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559; see Nabatkhorian v Nabatkhorian, 127 AD3d at 1043-1044). The element of justifiable reliance is not satisfied by the reliance of a third party on the alleged misrepresentation (see Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 829; New York Tile Wholesale Corp. v Thomas Fatato Realty Corp., 153 AD3d 1351, 1354).

Here, contrary to the Supreme Court's determination, the amended complaint failed to state a cause of action against Rosso alleging fraud or civil conspiracy to commit fraud. Although the amended complaint alleged that Yosef "fraudulently represented" that he was the sole owner of the subject property, no facts were set forth supporting justifiable reliance by the plaintiffs on the alleged misrepresentation. To the contrary, the allegations were that Kissos consistently asserted his [*3]

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