fraudulent concealment claim in New York

2024The governing ICA expressly provided that the relationship between the lenders was "solely an ordinary contractual business relationship involving arm's length parties" that did not owe each other any fiduciary duty ( see Sebastian Holdings, Inc. v Deutsche Bank AG. , 78 AD3d 446, 447 [1st Dept 2010]; Dembeck v 220 Cent.

2024The governing ICA expressly provided that the relationship between the lenders was "solely an ordinary contractual business relationship involving arm's length parties" that did not owe each other any fiduciary duty ( see Sebastian Holdings, Inc. v Deutsche Bank AG. , 78 AD3d 446, 447 [1st Dept 2010]; Dembeck v 220 Cent.

2024Second, a claim of aiding and abetting a breach of fiduciary duty requires plaintiff to prove, prima facie, "(1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that plaintiff suffered damage as a result of the breach" ( Schroeder v Pinterest Inc. , 133 AD3d 12, 24-25 [1st Dept 2015]).

2024Second, a claim of aiding and abetting a breach of fiduciary duty requires plaintiff to prove, prima facie, "(1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that plaintiff suffered damage as a result of the breach" ( Schroeder v Pinterest Inc. , 133 AD3d 12, 24-25 [1st Dept 2015]).

2023Inasmuch as there was no actionable promise to make Ms. Haart an equal partner, there was no duty to disclose the existence of the preferred stock ( see Kaufman v Cohen , 307 AD2d 113, 120 [1st Dept 2003]; Mitschele v Schultz , 36 AD3d 249, 254—55 [1st Dept 2006]).

2006The elements of a fraudulent concealment claim — concealment of a material fact which defendant was duty-bound to dis close, scienter, justifiable reliance, and injury (see Kaufman v Cohen, 307 AD2d 113, 119 [2003]; and see Ozelkan v Tyree Bros.

2012Moreover, since the recorded deeds were matters of public record, not exclusively within the knowledge of the Paines and their attorney Danziger, the failure to disclose that the Paines had acquired title by two separate deeds, thereby subdividing Lot No. 8, did not constitute active concealment, and is not actionable as a fraud (see Perez-Faringer v Heilman, 95 AD3d at 854 ; Stollsteimer v Kohler, 77 AD3d 1259, 1260 [2010]; Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1056 [2009]; Rozen v 7 Calf Cr, LLC, 52 AD3d at 593; F.A.S.A.

2012Moreover, since the recorded deeds were matters of public record, not exclusively within the knowledge of the Paines and their attorney Danziger, the failure to disclose that the Paines had acquired title by two separate deeds, thereby subdividing Lot No. 8, did not constitute active concealment, and is not actionable as a fraud (see Perez-Faringer v Heilman, 95 AD3d at 854 ; Stollsteimer v Kohler, 77 AD3d 1259, 1260 [2010]; Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1056 [2009]; Rozen v 7 Calf Cr, LLC, 52 AD3d at 593; F.A.S.A.

2012To state a claim for fraudulent concealment, a plaintiff must allege: (1) that the defendant had a duty to disclose certain material information but failed to do so; (2) that the defendant then made a material misrepresentation of fact; (3) that said misrepresentation was made intentionally in order to defraud or mislead; (4) that the plaintiff reasonably relied on said misrepresentation; and (5) that the plaintiff suffered damage as a result (see IDT Corp. v Morgan Stanley Dean Witter & Co., 63 AD3d 583, 586 [2009]).

2012To state a claim for fraudulent concealment, a plaintiff must allege: (1) that the defendant had a duty to disclose certain material information but failed to do so; (2) that the defendant then made a material misrepresentation of fact; (3) that said misrepresentation was made intentionally in order to defraud or mislead; (4) that the plaintiff reasonably relied on said misrepresentation; and (5) that the plaintiff suffered damage as a result (see IDT Corp. v Morgan Stanley Dean Witter & Co., 63 AD3d 583, 586 [2009]).

2012Moreover, since the recorded deeds were matters of public record, not exclusively within the knowledge of the Paines and their attorney Danziger, the failure to disclose that the Paines had acquired title by two separate deeds, thereby subdividing Lot No. 8, did not constitute active concealment, and is not actionable as a fraud (see Perez-Faringer v Heilman, 95 AD3d at 854 ; Stollsteimer v Kohler, 77 AD3d 1259, 1260 [2010]; Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1056 [2009]; Rozen v 7 Calf Cr, LLC, 52 AD3d at 593; F.A.S.A.

2012Moreover, since the recorded deeds were matters of public record, not exclusively within the knowledge of the Paines and their attorney Danziger, the failure to disclose that the Paines had acquired title by two separate deeds, thereby subdividing Lot No. 8, did not constitute active concealment, and is not actionable as a fraud (see Perez-Faringer v Heilman, 95 AD3d at 854 ; Stollsteimer v Kohler, 77 AD3d 1259, 1260 [2010]; Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1056 [2009]; Rozen v 7 Calf Cr, LLC, 52 AD3d at 593; F.A.S.A.

2012Moreover, since the recorded deeds were matters of public record, not exclusively within the knowledge of the Paines and their attorney Danziger, the failure to disclose that the Paines had acquired title by two separate deeds, thereby subdividing Lot No. 8, did not constitute active concealment, and is not actionable as a fraud (see Perez-Faringer v Heilman, 95 AD3d at 854 ; Stollsteimer v Kohler, 77 AD3d 1259, 1260 [2010]; Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1056 [2009]; Rozen v 7 Calf Cr, LLC, 52 AD3d at 593; F.A.S.A.

2012Moreover, since the recorded deeds were matters of public record, not exclusively within the knowledge of the Paines and their attorney Danziger, the failure to disclose that the Paines had acquired title by two separate deeds, thereby subdividing Lot No. 8, did not constitute active concealment, and is not actionable as a fraud (see Perez-Faringer v Heilman, 95 AD3d at 854 ; Stollsteimer v Kohler, 77 AD3d 1259, 1260 [2010]; Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1056 [2009]; Rozen v 7 Calf Cr, LLC, 52 AD3d at 593; F.A.S.A.

2004Relying on Cipollone v Liggett Group, Inc. ( 505 US 504 , supra ), the Miele court held that the fraudulent concealment claim was not preempted to the extent that it was based on a common-law duty imposed on the defendants to disclose the allegedly concealed material facts through channels of communication other than advertising or promotion ( see also In re Kings County Tobacco Litig. , 187 Misc 2d 409 [Sup Ct, Kings County 2000]).

2003The United States Supreme Court held in Cipollone v Liggett Group ( 505 US 504 [1992]), that the Act’s prohibition against the imposition by the states of any “requirement or prohibition based on smoking and health” ( 15 USC § 1334 [b]), preempts common-law actions as well as positive enactments (Cipollone v Liggett Group, supra at 521).

2019The fraudulent concealment claim fails because the allegations are insufficient to raise an inference that the alleged omission "directly caused the loss about which plaintiff complains" ( see Vandashield , 146 AD3d at 553 [internal quotation marks omitted]).

2008To invoke the doctrine of fraudulent concealment, a plaintiff “must plead and prove (1) the wrongful concealment by the defendant of its actions, (2) the failure by the plaintiff to discover the operative facts underlying the action within the limitations period, and (3) the plaintiff’s due diligence to discover the facts” (Donahue v Pendleton Woolen Mills, Inc., 633 F Supp 1423, 1443 [SD NY 1986]).

2007Weinroth owed a fiduciary duty to Andersen and AWLP which was “sensitive and ‘inflexible’ ” (Birnbaum v Birnbaum, 73 NY2d 461, 466 [1989]) in its requirement that Weinroth show absolute fidelity to Andersen and AWLP Thus, Andersen was reasonably justified in relying on Weinroth’s representations concerning his capital contributions without having to perform his own independent inquiries (see TPL Assoc. v Helmsley-Spear, Inc., 146 AD2d 468, 471 [1989]).

2007Weinroth owed a fiduciary duty to Andersen and AWLP which was “sensitive and ‘inflexible’ ” (Birnbaum v Birnbaum, 73 NY2d 461, 466 [1989]) in its requirement that Weinroth show absolute fidelity to Andersen and AWLP Thus, Andersen was reasonably justified in relying on Weinroth’s representations concerning his capital contributions without having to perform his own independent inquiries (see TPL Assoc. v Helmsley-Spear, Inc., 146 AD2d 468, 471 [1989]).

2006The trial court gave instructions that comported with the law as it pertains to the tort of fraudulent concealment (see Miele v American Tobacco Co., 2 AD3d 799, 803-804 [2003]; Young v Robertshaw Controls Co., Uni-Line Div., 104 AD2d 84, 87 [1984]), and gave instructions the appellants complain were not given.

2006The trial court gave instructions that comported with the law as it pertains to the tort of fraudulent concealment (see Miele v American Tobacco Co., 2 AD3d 799, 803-804 [2003]; Young v Robertshaw Controls Co., Uni-Line Div., 104 AD2d 84, 87 [1984]), and gave instructions the appellants complain were not given.

2006The appellants’ contention with regard to allegedly erroneous jury instructions on the plaintiffs’ fraudulent concealment claim is unpersuasive (see Colucci v Gateway Cathedral, 16 AD3d 614, 615 [2005]).

1996To the extent that this fraudulent concealment claim is premised upon defendants’ concealment of information from the EPA in violation of FIFRA, it is preempted, as it is not for a State court to regulate and police compliance with FIFRA procedure (Taylor AG Indus, v Pure-Gro, supra, at 561; Papas v Upjohn Co., 985 F2d 516, 519).