International Playtex, Inc. v. CIS Leasing Corp.

112 A.D.2d 719, 492 N.Y.S.2d 207, 1985 N.Y. App. Div. LEXIS 56226

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1985
• Status: Published

Opinion

Order unanimously affirmed, with costs. Memorandum: Special Term properly dismissed the counterclaim interposed by defendants CIS Leasing Corp. and CIS Equipment Leasing Corp. (CIS) against International Playtex, Inc. (Playtex) and The First National Bank of Chicago (Bank). The counterclaim fails to state a cause of action for fraud and deceit because CIS has not alleged that Playtex, in concert with the Bank, made any misrepresentation of a material fact (see, CPLR 3016 [b]; Jo Ann Homes v Dworetz, 25 NY2d 112, 119; Brooks Agency v S.W.S. Constr., 100 AD2d 740, 741). CIS’s reliance on Verplanck v Van Buren (76 NY 247) is misplaced. Verplanck does not create a cause of action for fraudulent use of legal proceedings but holds only that a cause of action for fraud and deceit will lie, even though perjury is present, where the perjury is merely a means to the accomplishment of a larger fraudulent scheme (Newin Corp. v Hartford Acc. & Indem Co., 37 NY2d 211, 217). (Appeal from order of Supreme Court, Onondaga County, Lynch, J. — dismiss counterclaim.) Present — Hancock, Jr., J. P., Callahan, Den-man, Green and Schnepp, JJ.