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THE ESTATE OF EVELYN SONNELITTER, DECEASED, GARY SONNELITTER, EXECUTOR, AND SONNELITTER FAMILY TRUST, PLAINTIFFS–APPELLANTS -RESPONDENTS, v. THE ESTATE OF JOSEPH WHITE, DECEASED, CAROL ALABISO, EXECUTOR, DEFENDANT–RESPONDENT–APPELLANT, CAROL ALABISO, GERALD MCCLAIN WHITLEY AND MCCLAIN PROPERTIES, LLC, DEFENDANTS–RESPONDENTS. (APPEAL NO. 2.)
MEMORANDUM AND ORDER
Appeal and cross appeal from a judgment of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered July 26, 2011. The judgment decreed that Joseph White breached his fiduciary duty to the Sonnelitter Family Trust, awarded plaintiffs money damages against White and otherwise dismissed plaintiffs' causes of action.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Following a nonjury trial, Supreme Court awarded judgment to plaintiff on the cause of action for breach of fiduciary duty, and directed White to pay damages of $43,000, plus interest from the date of sale, representing the difference between the sale price, $127,000, and what the court determined to be the property's market value, $185,000, minus eight percent for closing costs. Plaintiff contends on appeal that the court erred in dismissing his causes of action for fraud and unjust enrichment, and erred in denying his request for appreciation damages. On his cross appeal, White contends, inter alia, that the court erred in finding him liable under the cause of action for breach of fiduciary duty. We affirm.
To prevail on a cause of action for fraud, a plaintiff must “prove a misrepresentation or a material omission of fact which was false and known to be false by [the defendant], made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury” (Vineyard Oil & Gas Co. v. Stand Energy Corp., 45 AD3d 1291, 1293 [internal quotation marks omitted]; see Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421). “[L]iability for fraud may be premised on knowing participation in a scheme to defraud, even if that participation does not by itself suffice to constitute the fraud” (Kuo Feng Corp. v. Ma, 248 A.D.2d 168, 168–169, appeal dismissed 92 N.Y.2d 845, lv denied 92 N.Y.2d 809; see CPC Intl. v. McKesson Corp., 70 N.Y.2d 268, 286). Evidence of fraud may be circumstantial (see Kuo Feng Corp., 248 A.D.2d at 169), but the fraud must be proved by clear and convincing evidence (see Vineyard Oil & Gas Co., 45 AD3d at 1293).
“In a nonjury trial, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses” (Mohan v. State of New York, 110 AD3d 573, 573 [internal quotation marks omitted]; see Treat v. Wegmans Food Mkts., Inc., 46 AD3d 1403, 1404). Here, the cause of action for fraud was premised on plaintiff's theory that White and defendants acted together in a scheme to defraud decedent by making it appear as if the condominium had been sold for market value in an arm's length transaction to a third party, when in fact White was the real purchaser for a price well below market value. Although plaintiff introduced circumstantial evidence of such a scheme at trial, there was contrary evidence as well, including the testimony of White, Whitley and Alabiso, all of whom denied that White was the true purchaser of the property. Giving deference to the credibility determinations of the court, which had the benefit of seeing the witnesses and assessing their demeanor, we conclude that, although a different verdict on the cause of action for fraud would not have been unreasonable, the court's determination is based on a fair interpretation of the evidence.
We reject plaintiff's contention that the court erred in denying his request for appreciation damages. Appreciation damages are appropriate where a trustee sells property he or she was duty-bound to retain, “the theory being that the beneficiaries are entitled to be placed in the same position they would have been in had the breach not consisted of a sale of property that should have been retained” (Scalp & Blade v. Advest, Inc., 309 A.D.2d 219, 227 [internal quotation marks omitted]; see Matter of Rothko, 43 N.Y.2d 305, 320–321). Here, White had no duty to retain decedent's condominium; in fact, the record establishes that there were many good reasons for White to sell the property, which was not being used and cost decedent between $6,000 and $8,000 annually to maintain. Moreover, as noted, White was not found to have engaged in fraudulent conduct. Under the circumstances, we conclude that the court properly denied plaintiff's request for appreciation damages.
Finally, we have reviewed White's contentions on his cross appeal and conclude that they lack merit.
Frances E. Cafarell
Clerk of the Court
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Docket No: CA 12–00176
Decided: March 21, 2014
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
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