Jaffer v. Miles

209 A.D.2d 672, 619 N.Y.S.2d 957, 1994 N.Y. App. Div. LEXIS 11749

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1994
• Status: Published

Opinion

—In an action, inter alia, for specific performance of an alleged contract for the sale of land, the defendants Edward and Andrina Miles appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered December 21, 1992, as, upon reargument, granted the plaintiffs’ motion for summary judgment dismissing their first counterclaim for damages for fraud.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly dismissed the appellants’ first counterclaim for damages for fraud. The appellants failed to show that they had reasonably relied on the alleged misrepresentations by the plaintiffs, a necessary element in an action for damages for fraud (see, e.g., 113-14 Owners Corp. v Gertz, 123 AD2d 850; Green v Liebowitz, 118 AD2d 756; 60 NY Jur 2d Fraud & Deceit, § 223).

The appellants’ remaining contention, that the Supreme Court erroneously dismissed their fourth counterclaim for indemnification, is not properly before this Court because the appellants raised it for the first time in their reply brief (see, Duran v Heller, 203 AD2d 414). Thompson, J. P., Lawrence, O’Brien and Krausman, JJ., concur.