CLARKE v. WALLACE OIL COMPANY INC

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Supreme Court, Appellate Division, Second Department, New York.

Wayne CLARKE, Appellant-Respondent, v. WALLACE OIL COMPANY, INC., Respondent-Appellant (Matter No. 1).

IN RE: Wallace Oil Company, Inc., Respondent, v. Wayne Clarke, Appellant (Matter No. 2).

Decided: June 25, 2001

CORNELIUS J. O'BRIEN, J.P., SONDRA MILLER, WILLIAM D. FRIEDMANN and SANDRA L. TOWNES, JJ. Greenwald Law Offices, Chester, N.Y. (Marie DuSault of counsel), for appellant-respondent in Matter No. 1 and appellant in Matter No. 2. Blizard & Blizard, Middletown, N.Y. (F. Daniel Blizard of counsel), for respondent-appellant in Matter No. 1 and respondent in Matter No. 2.

In an action to recover damages for fraud (Matter No. 1), and a proceeding to recover rent arrears pursuant to RPAPL article 7 (Matter No. 2), which were joined for trial, Wayne Clarke appeals from (1) a judgment of the Supreme Court, Orange County (Williams, J.H.O.), entered November 30, 1999, which, after a nonjury trial, is in favor of Wallace Oil Company, Inc., and against him dismissing the complaint in Matter No. 1, and Wallace Oil Company, Inc., cross-appeals from that judgment, and (2) a judgment of the same court, also entered November 30, 1999, in Matter No. 2, which, after the nonjury trial, is in favor of Wallace Oil Company, Inc., and against him in the principal sum of $23,412.27.

ORDERED that the cross appeal is dismissed as abandoned (see, 22 NYCRR 670.8 [c], [e]);  and it is further,

ORDERED that the judgment in Matter No. 1 is affirmed, without costs or disbursements;  and it is further,

ORDERED that the judgment in Matter No. 2 is reversed, without costs or disbursements, the petition is denied, and the proceeding is dismissed.

 “In an action to recover damages for fraud, the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by 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” (Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421, 646 N.Y.S.2d 76, 668 N.E.2d 1370;  see, New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318, 639 N.Y.S.2d 283, 662 N.E.2d 763;  Channel Master Corp. v. Aluminium Ltd. Sales, 4 N.Y.2d 403, 176 N.Y.S.2d 259, 151 N.E.2d 833).   The “standard of proof for establishing fraud is clear and convincing evidence” (Cavell v. Sialiano, 279 A.D.2d 599, 719 N.Y.S.2d 869;  see, Simcuski v. Saeli, 44 N.Y.2d 442, 406 N.Y.S.2d 259, 377 N.E.2d 713;  Rudman v. Cowles Communications, 30 N.Y.2d 1, 330 N.Y.S.2d 33, 280 N.E.2d 867).   As the plaintiff in Matter No. 1, Wayne Clarke, failed to demonstrate that he justifiably relied on the alleged assertions of the defendant, the court properly dismissed the complaint in that Matter.

 However, the court improperly awarded judgment in favor of Wallace Oil Company, Inc. (hereinafter Wallace Oil), in Matter No. 2, the summary proceeding.  “[F]ailure strictly to comply with the statutes governing summary proceedings deprives the court of jurisdiction and mandates dismissal.  ‘[A] summary proceeding is a special proceeding governed entirely by statute and it is well established that there must be strict compliance with the statutory requirements to give the court jurisdiction’ ” (MSG Pomp Corp. v. Jane Doe, 185 A.D.2d 798, 799-800, 586 N.Y.S.2d 965, quoting Berkeley Assocs. Co. v. Di Nolfi, 122 A.D.2d 703, 705, 505 N.Y.S.2d 630).

Here, Wallace Oil misidentified the subject premises in its petition to recover rent arrears.   That defect deprived the court of subject matter jurisdiction (see, Papacostopulos v. Morrelli, 122 Misc.2d 938, 472 N.Y.S.2d 284;  RPAPL 741[3]).

O'BRIEN, J.P., S. MILLER, FRIEDMANN and TOWNES, JJ., concur.

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