Merrill Lynch Credit Corp. v. Smith, 87 A.D.3d 1391 (N.Y. App. Div. 2011). · Go Syfert
Merrill Lynch Credit Corp. v. Smith, 87 A.D.3d 1391 (N.Y. App. Div. 2011). Cases Citing This Book View Copy Cite
8 citation events (8 in the last 25 years) across 1 distinct court.
Strongest positive: Lee Fang v. Town of Amherst (nyappdiv, 2025-05-02)
Top citers, strongest first. 6 distinct citers. How cited ↗
discussed Cited as authority (rule) Lee Fang v. Town of Amherst
N.Y. App. Div. · 2025 · confidence medium
Here, plaintiff has failed to show that the Town engaged in any fraud, misrepresentations, or deception ( see generally Merrill Lynch Credit Corp. v Smith , 87 AD3d 1391, 1393 [4th Dept 2011]; Pecoraro v M & T Bank Corp ., 11 AD3d 950, 952 [4th Dept 2004]).
discussed Cited as authority (rule) Barrett v. Grenda
N.Y. App. Div. · 2017 · confidence medium
With respect to the cause of action for fraud insofar as asserted against the TD Ameritrade defendants, plaintiff was required to allege “misrepresentation of a material fact, scien-ter, justifiable reliance, and injury” (Merrill Lynch Credit Corp. v Smith, 87 AD3d 1391, 1392 [2011] [internal quotation marks omitted]).
discussed Cited as authority (rule) WELLS FARGO BANK, N.A. v. DEERING, CHERYL A.
N.Y. App. Div. · 2015 · confidence medium
Defendants did not allege, among other things, that they justifiably relied on the improper description of the mortgaged premises or that they were injured thereby (see Merrill Lynch Credit Corp. v Smith, 87 AD3d 1391, 1392-1393 [2011]; cf. Heckl v Walsh [appeal No. 2], 122 AD3d 1252, 1255 [2014]; see generally Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178 [2011]).
discussed Cited as authority (rule) Leonardi v. County of Cayuga
N.Y. App. Div. · 2013 · confidence medium
“The elements of a cause of action for fraud require 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 [2009]; see Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486 [2008]; Merrill Lynch Credit Corp. v Smith, 87 AD3d 1391, 1392-1393 [2011]).
discussed Cited as authority (rule) Leonardi v. County of Cayuga
N.Y. App. Div. · 2013 · confidence medium
“The elements of a cause of action for fraud require 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 [2009]; see Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486 [2008]; Merrill Lynch Credit Corp. v Smith, 87 AD3d 1391, 1392-1393 [2011]).
discussed Cited "see" Stuber v. Stuber
N.Y. App. Div. · 2022 · signal: see · confidence high
Further, "when confronted with defendant's motion to dismiss, plaintiff failed to come forth with any facts or circumstances" supporting her allegations ( Greschler v Greschler , 51 NY2d 368, 375 [1980]; see Merrill Lynch Credit Corp. v Smith , 87 AD3d 1391, 1392-1393 [4th Dept 2011]) .
Retrieving the full opinion text from the archive…
Merrill Lynch Credit Corporation
v.
Douglas P. Smith, and Mark Chamberlain, Defendants/Third-Party Independent Title Agency, LLC, Third-Party Defendant-Respondent
Appellate Division of the Supreme Court of the State of New York.
Sep 30, 2011.
87 A.D.3d 1391
Cited by 7 opinions  |  Published
Memorandum:

Defendants/third-party plaintiffs, Mark Chamberlain and Alexandra M. Chamberlain, purchased property from defendants Douglas E Smith and Lisa A. Smith in September 1997. In conjunction therewith, third-party defendant performed a title search on the property and prepared a title abstract in July 1997, which was recertified at the time of the closing in September. The title abstract, however, failed to list an outstanding mortgage in the amount of $50,000 to secure a loan given by plaintiff to the Smiths in July 1997. In December 2008, plaintiff commenced this mortgage foreclosure action after the Smiths failed to make payments on the loan, and the Chamberlains in turn commenced a third-party action asserting causes of action for fraud, negligent misrepresentation, and breach of contract.

Supreme Court properly granted third-party defendant’s motion to dismiss the third-party complaint, on the grounds that the cause of action for fraud did not comply with CFLR 3016 (b) and the remaining two causes of action were time-barred. As a preliminary matter, we reject the Chamberlains’ contention that the court committed procedural errors in considering the motion. The court did not convert third-party defendant’s motion to dismiss to a motion for summary judgment (see CFLR 3211 [c]). Rather, as indicated in the court’s August 2009 order and August 2010 decision and order, the court denied third-party defendant’s first motion to dismiss without prejudice and with the proviso that it would “re-consider” that motion at the conclusion of discovery. Based on those circumstances, third-party defendant’s renewal of its motion to dismiss did not violate the single motion rule set forth in CFLR 3211 (e). Contrary to the Chamberlains’ further contention, nothing in CPLR 3211 (e) prohibits a party from moving to dismiss a cause of action based on the statute of limitations after raising that defense in an answer (see generally Goldenberg v Westchester County Health Care Corp., 16 NY3d 323, 326 [2011]).

With respect to the fraud cause of action, the Chamberlains were required to show “ ‘misrepresentation of a material fact, scienter, justifiable reliance, and injury’ ” (Simmons v Washing Equip. Tech., 51 AD3d 1390, 1391 [2008]). We agree with third-party defendant that the Chamberlains failed to plead the allegations of fraud with sufficient particularity as required by CPLR 3016 (b) (see Greschler v Greschler, 51 NY2d 368, 375 [1980]; Pope v Saget, 29 AD3d 437, 441 [2006], lv denied 8 NY3d 803 [2007]) and that, “when confronted with [third-party] de[*1393] fendant’s motion to dismiss, [they] failed to come forth with any facts or circumstances constituting the claimed fraud as required by law” (Greschler, 51 NY2d at 375). Indeed, the Chamberlains’ cause of action for fraud merely repeated the allegations for the negligent misrepresentation cause of action and added an allegation that third-party defendant had actual knowledge that its representation was false when made. “This single allegation of scienter, without additional detail concerning the facts constituting the alleged fraud, is insufficient under the special pleading standards required under CPLR 3016 (b)” (Credit Alliance Corp. v Arthur Andersen & Co., 65 NY2d 536, 554 [1985], mot to amend remittitur granted 66 NY2d 812 [1985]; see Empire of Am., Fed. Sav. Bank v Arthur Andersen & Co. [appeal No. 2], 129 AD2d 990, 991 [1987]).

With respect to the negligent misrepresentation and breach of contract causes of action, the court properly dismissed them as untimely. Contrary to the Chamberlains’ contention, the doctrine of equitable estoppel does not apply. The Chamberlains had to show that they were “induced by fraud, misrepresentations or deception to refrain from filing a timely action” (Simcuski v Saeli, 44 NY2d 442, 449 [1978]), and that they reasonably relied on third-party defendant’s alleged fraud, misrepresentations or deception (see Putter v North Shore Univ. Hosp., 7 NY3d 548, 552-553 [2006]; Zumpano v Quinn, 6 NY3d 666, 674 [2006]). Here, the Chamberlains have shown no “subsequent and specific actions by [third-party defendant that] somehow kept them from timely bringing suit” (Zumpano, 6 NY3d at 674). Present — Centra, J.R, Fahey, Sconiers, Green and Martoche, JJ.