BIELSA v. Luis Alejandro Kaufman Gonzalez, Defendant. (2022)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered November 13, 2020, which granted defendants’ motion to dismiss the complaint, unanimously affirmed, with costs.

The complaint failed to state a cause of action for fraud or aiding and abetting fraud.  Plaintiff alleges that defendants, who are siblings, submitted conflicting tax documents regarding their father's assets, filing one set of documents with Venezuelan tax authorities and a different set with the New York State Surrogate's Court.  Plaintiff also alleges that his ex-wife, defendant Maria Alejandra Kaufman Gonzalez, renounced her inheritance from her father in exchange for other assets from defendants’ mother, disposed of those assets, and then never disclosed the fruits of that disposition to her husband, against whom she initiated divorce proceedings approximately six years later.  Those allegations, however, are insufficient to support a fraud claim.  The documentary evidence shows that defendants’ mother, a nonparty, was actually the person who submitted the tax information to the Surrogate's Court;  therefore, the alleged misrepresentations cannot be imputed to defendants.  Moreover, the alleged misrepresentations were made not to plaintiff, but to third parties, thus preventing plaintiff from claiming reliance (see Escoett & Co. v. Alexander & Alexander, Inc., 31 A.D.2d 791, 791, 296 N.Y.S.2d 929 [1st Dept. 1969]).

In addition, the documentary evidence conclusively establishes as a matter of law that Maria did not have a duty to disclose her inheritance or disposition of assets to plaintiff.  Plaintiff and Maria's prenuptial agreement states that Maria was entitled to keep assets acquired through inheritance or “any other means,” and could dispose of those assets without obtaining plaintiff's consent.  As a result, plaintiff's fraud claim was properly dismissed, as was the claim against defendants Luis Alejandro Kaufman Gonzalez and Ivan Alexis Kaufman Gonzalez for aiding and abetting fraud.

Plaintiff has also not properly pleaded a breach of fiduciary duty claim, as he failed to allege the existence of a fiduciary relationship (see Castellotti v. Free, 138 A.D.3d 198, 209–210, 27 N.Y.S.3d 507 [1st Dept. 2016]).  In any event, as already noted, given the terms of the prenuptial agreement, it cannot be said that Maria engaged in misconduct by disposing of assets without first obtaining plaintiff's consent.  Likewise, as the breach of fiduciary duty claim against Maria fails, causes of action against defendants Luis and Ivan for aiding and abetting breach of fiduciary duty claims were also properly dismissed (see Kassover v. Prism Venture Partners, LLC, 53 A.D.3d 444, 449, 862 N.Y.S.2d 493 [1st Dept. 2008]).

Because none of the underlying claims can be sustained, Supreme Court correctly dismissed the punitive damages demands (see Rocanova v. Equitable Life Assur. Socy. of U.S., 83 N.Y.2d 603, 616, 612 N.Y.S.2d 339, 634 N.E.2d 940 [1994]).  Supreme Court also properly denied plaintiff's request to replead, as he failed to make any evidentiary showing that any of his proposed causes of action would have merit.

There is no contractual provision or statutory authority warranting an award of attorneys’ fees incurred by plaintiff in the Venezuelan divorce proceedings.

We have considered plaintiff's remaining contentions and find them unavailing.