MARCHAND v. NPL CONSULTING SERVICES INC (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for fraud, aiding and abetting fraud, and violations of General Business Law §§ 349 and 350, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Jerry Garguilo, J.), dated June 28, 2024.  The order granted the motion of the defendants NPL Consulting Services, Inc., Matthew R. Mattera, John Mattera, Michael Eisenberg, and Sylvain Chouen, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

In March 2019, the plaintiff Victor Marchand purchased a trucking business from the defendant Fleet Advantage Group, LLC. The defendant NPL Consulting Services, Inc. (hereinafter NPL), which employed the defendants Matthew R. Mattera, John Mattera, Michael Eisenberg, and Sylvain Chouen (hereinafter collectively with NPL, the NPL defendants), acted as broker for the sale.  Marchand formed the plaintiff VVN Logistics, Inc., to operate the business.

In June 2023, the plaintiffs commenced this action, inter alia, to recover damages for fraud, aiding and abetting fraud, and violations of General Business Law §§ 349 and 350, alleging, among other things, that the NPL defendants misrepresented to Marchand the value and nature of the purchase.  The NPL defendants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.  In an order dated June 28, 2024, the Supreme Court granted the motion.  The plaintiffs appeal.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v. Martinez, 84 N.Y.2d 83, 87–88;  see Benjamin v. Yeroushalmi, 178 AD3d 650, 653).  Under CPLR 3211(a)(1), dismissal is warranted “only where the documentary evidence utterly refutes [the] factual allegations [in the complaint], conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326;  see Leon v. Martinez, 84 N.Y.2d at 88).

The elements of a cause of action alleging fraud are “a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages” (Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 559;  see Sneider v Great S. Bay Surgical Assoc.   & Vascular Lab, LLP, 235 AD3d 685, 687).  “A claim rooted in fraud must be pleaded with the requisite particularity under CPLR 3016(b)” (Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d at 559).  “ ‘A plaintiff is expected to exercise ordinary diligence and may not claim to have reasonably relied on a defendant's representations ․ where he [or she] has means available to him [or her] of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation’ ” (Benjamin v. Yeroushalmi, 178 AD3d at 654, quoting Sitar v. Sitar, 61 AD3d 739, 742).

Here, the plaintiffs alleged that Marchand, an experienced businessperson, relied upon the NPL defendants' alleged misrepresentations without conducting any investigation or performing any due diligence into the factual basis for that information or the viability of the trucking business as a business opportunity (see Lapin v. Verner, 238 AD3d 1128, 1130;  Benjamin v. Yeroushalmi, 178 AD3d at 654).  Accordingly, since the plaintiffs failed to adequately allege justifiable reliance, the Supreme Court properly granted that branch of the NPL defendants' motion which was to dismiss the cause of action alleging fraud insofar as asserted against them.

Moreover, as a cause of action alleging aiding and abetting fraud cannot lie without the underlying fraud having been sufficiently pleaded, the Supreme Court properly granted that branch of the NPL defendants' motion which was to dismiss the cause of action alleging aiding and abetting fraud (see Arco Acquisitions, LLC v. Tiffany Plaza, LLC, 224 AD3d 798, 799;  Weinstein v. Levitin, 208 AD3d 531, 532).

The Supreme Court also properly granted those branches of the NPL defendants' motion which were to dismiss the causes of action alleging violations of General Business Law §§ 349 and 350 insofar as asserted against them.  To state a cause of action under either section, “ ‘a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice’ ” (Plavin v. Group Health Inc., 35 NY3d 1, 10, quoting Koch v. Acker, Merral & Condit Co., 18 NY3d 940, 941;  see Kovalenko v Bhatti Gen. Contr.   & Dev., LLC, 241 AD3d 1540, 1543;  Abraham v. Torati, 219 AD3d 1275, 1280).  “Private contract disputes, unique to the parties, ․ [do] not fall within the ambit of the statute” (Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 N.Y.2d 20, 25).

Here, the complaint failed to allege consumer-oriented conduct.  The complaint did not allege that the NPL defendants offered their services to the general public or that the NPL defendants' acts and practices were of a recurring nature and harmful to the public at large (see Kovalenko v Bhatti Gen. Contr.   & Dev., LLC, 241 AD3d at 1544;  Abraham v. Torati, 219 AD3d at 1281).  Rather, even liberally construing the complaint, the plaintiffs merely alleged a private contract dispute unique to the parties that fell outside General Business Law §§ 349 and 350 (see Kovalenko v Bhatti Gen. Contr.   & Dev., LLC, 241 AD3d at 1544;  Abraham v. Torati, 219 AD3d at 1281).

The plaintiffs' remaining contentions need not be reached in light of our determination.

GENOVESI, J.P., WARHIT, LOVE and QUIRK, JJ., concur.