JAE HEUNG YOO v. SE KWANG KIM

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

JAE HEUNG YOO, Appellant, v. SE KWANG KIM, Respondent.

Decided: December 24, 2001

CORNELIUS J. O'BRIEN, J.P., FRED T. SANTUCCI, HOWARD MILLER, and BARRY A. COZIER, JJ. Piper Marbury Rudnick & Wolfe, LLP, New York, N.Y. (Amy W. Schulman and Dana C. Lumsden of counsel), for appellant.

In an action to recover on a promissory note brought by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals from an order of the Supreme Court, Queens County (Posner, J.), dated November 28, 2000, which denied his motion pursuant to CPLR 3211(a)(7) to dismiss the defendant's counterclaim alleging fraud.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the counterclaim alleging fraud is dismissed.

On February 22, 1996, the parties entered into a contract whereby the defendant agreed to purchase a bakery from the plaintiff for $135,000, of which $75,000 was payable in cash.   The remaining $60,000 was payable under the terms of a promissory note.   The defendant failed to make any payments under the promissory note and the plaintiff commenced this action to recover the remaining amount of the purchase price.

The defendant served an answer and counterclaims alleging, inter alia, that the plaintiff fraudulently concealed from him a planned subway construction project by the New York City Transit Authority and the Metropolitan Transit Authority in front of the bakery, and that he was unable to pay rent and was forced to vacate the premises as a result of the construction.   The plaintiff moved pursuant to CPLR 3211(a)(7) to dismiss the counterclaim alleging fraud, and the Supreme Court denied the motion.

The counterclaim should have been dismissed, as there was no confidential or fiduciary relationship between the parties and the defendant failed to allege that the plaintiff engaged in any conduct that constituted active concealment (see, Glazer v. LoPreste, 278 A.D.2d 198, 717 N.Y.S.2d 256;  Industrial Risk Insurers v. Ernst, 224 A.D.2d 389, 638 N.Y.S.2d 109;  Yerushalmi v. Monroe, 185 A.D.2d 841, 587 N.Y.S.2d 376;  London v. Courduff, 141 A.D.2d 803, 529 N.Y.S.2d 874).

Further, the counterclaim failed to set forth set the requisite elements of fraud with particularity (see, CPLR 3016[b];  Pappas v. Passias, 271 A.D.2d 420, 707 N.Y.S.2d 178;  Fink v. Citizens Mtg. Banking, 148 A.D.2d 578, 539 N.Y.S.2d 45).

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