Financial Vision Capital Group II, LLC v. Peka Group, LLC
Opinion
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Bureau Thomas J.K. Smith, State Reporter
Financial Vision Capital Group II, LLC v Peka Group, LLC
2026 NY Slip Op 04749
July 29, 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.
Financial Vision Capital Group II, LLC, respondent,
v
Peka Group, LLC, et al., appellants.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 29, 2026
2023-09274, (Index No. 612359/22)
Mark C. Dillon, J.P.
Cheryl E. Chambers
Lillian Wan
Laurence L. Love, JJ.
Jacobs P.C., New York, NY (Leo Jacobs, Adam B. Sherman, and Muriel Raggi of counsel), for appellants.
Dantzig & Zigman, P.C., Carle Place, NY (Susan E. Dantzig and Alan S. Zigman of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for fraud and unjust enrichment, the defendants appeal from an order of the Supreme Court, Nassau County (Sharon M.J. Gianelli, J.), entered September 29, 2023. The order denied the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action against the defendants to recover damages for fraud and unjust enrichment allegedly relating to an agreement whereby the defendants would refer certain medical providers to the plaintiff who, in turn, would provide monetary advances or funding to those providers and pay a referral fee to the defendants. The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint. The plaintiff opposed the motion, submitting, inter alia, an affidavit. In an order entered September 29, 2023, the Supreme Court denied the defendants' motion. The defendants appeal.
On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87; Langley v Melville Fire Dist., 213 AD3d 748, 750). Evidentiary material submitted by the plaintiff in opposition to such a motion may be considered to remedy defects in the complaint (see Rovello v Orofino Realty Co., 40 NY2d 633, 636; Langley v Melville Fire Dist., 213 AD3d at 750). Where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the court should not dismiss the complaint unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact (see Guggenheimer v Ginzburg, 43 NY2d 268, 275; Langley v Melville Fire Dist., 213 AD3d at 750). "In this procedural posture, the allegations of a complaint, supplemented by a plaintiff's additional submissions, if any, must be given their most favorable intendment" (Arrington [*2]v New York Times Co., 55 NY2d 433, 442). "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38; see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19).
Here, the Supreme Court properly denied the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint. Generally, on a cause of action alleging fraud, a plaintiff must allege a misrepresentation or a material omission of fact that was false and known to be false by the defendant, made for the purpose of inducing the other party to rely on it, justifiable reliance of the other party on the misrepresentation or material omission, and injury (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178; Lama Holding Co. v Smith Barney, 88 NY2d 413, 421). Where a cause of action is based in fraud, "the circumstances constituting the wrong shall be stated in detail" (CPLR 3016[b]). Contrary to the defendants' contentions, viewing the plaintiff's allegations in the light most favorable to the plaintiff, they were sufficient to allege a misrepresentation of fact (see Vision Accomplished, Inc. v Lowe Props., LLC, 131 AD3d 1163, 1164), as well as justifiable reliance (see Feldman v Byrne, 210 AD3d 646, 649). Moreover, the plaintiff's allegations were sufficient to assert a cause of action alleging unjust enrichment (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d at 182).
Accordingly, we affirm the order.
DILLON, J.P., CHAMBERS, WAN and LOVE, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
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