Fink v. Citizens Mortgage Banking Ltd.

148 A.D.2d 578, 539 N.Y.S.2d 45, 1989 N.Y. App. Div. LEXIS 3912

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 1989
• Status: Published

Opinion

In an action to recover damages for fraud, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Roncallo, J.), dated January 25, 1988, which granted the defendant’s motion to dismiss the complaint.

Ordered that the order is affirmed, with costs.

In order to plead a prima facie case of fraud, a plaintiff must allege each of the elements of fraud with particularity and must support each element with an allegation of fact (see, CPLR 3016 [b]; Lanzi v Brooks, 54 AD2d 1057, affd 43 NY2d 778).

Specifically the plaintiffs’ complaint alleges that the defendant never intended to comply with its promise to "close” a mortgage transaction on or before May 5, 1987. The plaintiffs apparently inferred this element of scienter from the fact that the mortgage transaction did not close on that date. However, "any inference drawn from the fact that [an] expectation did not occur is not sufficient to sustain the plaintiff’s burden” (Lanzi v Brooks, supra, at 1058). The plaintiffs’ assertion was unsupported by any factual allegations and was conclusory in nature. As such, they have not alleged facts sufficient to establish that the defendant, at the time the alleged representation was made, never intended to honor its promise, and therefore the complaint was legally insufficient to allege a cause of action sounding in fraud (Pope v New York Prop. Ins. Underwriting Assn., 66 NY2d 857). Bracken, J. P., Spatt, Sullivan and Harwood, JJ., concur.