RSD857 LLC v. Michael Petrokansky, et al., Defendants. (2025)

Order, Supreme Court, New York County (Paul Goetz, J.), entered on or about May 15, 2024, which, to the extent appealed from, denied counterclaim defendant John Viscusi's motion to dismiss the counterclaims against him by defendant/counterclaim plaintiff Albert Wright, unanimously affirmed, with costs.

Supreme Court properly denied Viscusi's motion to dismiss the counterclaims against him because Wright adequately pleaded a claim for fraud.  Although appraisals are generally not actionable under a theory of fraud (see Wells Fargo Bank, N.A. v. Alessi, 133 A.D.3d 1216, 1217, 20 N.Y.S.3d 268 [4th Dept. 2015]), “an opinion, especially an opinion by an expert, may be found to be fraudulent if the grounds supporting it are so flimsy as to lead to the conclusion that there was no genuine belief back of it' ” (Ambassador Factors v. Kandel & Co., 215 A.D.2d 305, 308, 626 N.Y.S.2d 803 [1st Dept. 1995] [internal quotation marks omitted];  see also Ultramares Corp. v. Touche, 255 N.Y. 170, 186, 174 N.E. 441 [1931]).  In this action to quiet title to real property, Wright, the prior property owner, alleges that in January 2019, Viscusi, a real estate appraiser, significantly undervalued the property at $825,000, by, among other things, failing to account for its value as a development site and using “comparable” sales based on properties that were not at all comparable.  Wright also alleges that the appraisal was a significant factor in convincing him to ultimately agree to a short sale of the property in October 2019.  Wright's allegations that Viscusi's valuation of the property at $825,000, and that “statements used to support this valuation” were “false and misleading and misrepresented material facts,” were supported by the forensic analysis performed by appraiser Michael Pavlakos annexed to Wright's pleading (see Houbigant, Inc. v. Deloitte & Touche, 303 A.D.2d 92, 99, 753 N.Y.S.2d 493 [1st Dept. 2003];  Ambassador Factors, 215 A.D.2d at 308, 626 N.Y.S.2d 803).  Specifically, Pavlakos determined that Viscusi's appraisal egregiously undervalued the property by millions of dollars, contained numerous errors, was misleading, and not credible.

Moreover, Wright adequately pleaded that Viscusi was aware that his misrepresentations would reasonably be relied upon by Wright (see Houbigant, Inc., 303 A.D.2d at 100, 753 N.Y.S.2d 493).  Viscusi's appraisal explicitly stated that its intended recipient was Wright, and that its intended use was for Wright, as “lender/client,” to evaluate the property as to its fair market value.  Wright sufficiently pleaded that he reasonably relied on Viscusi's appraisal for this purpose (see Remediation Capital Funding LLC v. Noto, 147 A.D.3d 469, 470–471, 46 N.Y.S.3d 606 [1st Dept. 2017]).

Viscusi's suggestion that Wright, an elderly, legally blind man, and the alleged victim of a predatory scheme, should have exercised “ordinary intelligence,” by, for instance, performing an internet search to independently assess the true value of the property, has no merit (see Rapaport v. Strategic Fin. Solutions, LLC, 190 A.D.3d 657, 657, 140 N.Y.S.3d 508 [1st Dept. 2021]).  To the extent Wright's allegations of fraud are “based on information and belief,” Wright “sets forth sufficient information to apprise” Viscusi “of the alleged wrongs” (Allenby, LLC v. Credit Suisse, AG, 134 A.D.3d 577, 579–580, 25 N.Y.S.3d 1 [1st Dept. 2015] [internal quotation marks omitted]).

We have considered Viscusi's remaining arguments and find them unavailing.