Eggert v. GCD Recording Studios

90 A.D.3d 425, 933 N.Y.2d 856

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 6, 2011
• Status: Published

Opinion

The motion court improperly determined that the cause of action alleging fraud as against Perez was not pleaded with sufficient particularity under CPLR 3016 (b). The second amended complaint cured the initial infirmities identified by the court on a prior motion by alleging that Perez, in seeking to persuade plaintiff to invest in defendant GCD, told plaintiff that he “was an active participant in GCD,” an assertion allegedly false when made, and that based on that representation plaintiff agreed to loan money to GCD. Accordingly, plaintiff has alleged facts “sufficient to permit a reasonable inference of [fraud]” against Perez (Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492 [2008]).

Plaintiffs belated compliance with the stipulation so ordered by this Court on February 2, 2010 and failure to comply with the stipulation filed with this Court on April 19, 2010 do not constitute “frivolous conduct” for the purpose of imposing sanctions under 22 NYCRR 130-1.1. Although counsel’s conduct was less than punctilious, it did not constitute willful delay, harassment, or intent to maliciously injure. Concur — Mazzarelli, J.E, Friedman, Catterson, Manzanet-Daniels and Román, JJ. [Prior Case History: 2009 NY Slip Op 30309(U).]