Lanzi v. Brooks, 54 A.D.2d 1057 (N.Y. App. Div. 1976). · Go Syfert
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Lanzi v. Brooks, 54 A.D.2d 1057 (N.Y. App. Div. 1976). Cases Citing This Book View Copy Cite
210 citation events (36 in the last 25 years) across 11 distinct courts.
Strongest positive: CRE Niagara Holdings, LLC v. Resorts Group, Inc. (delsuperct, 2022-05-31)
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977 2001 2026
Top citers, strongest first. 34 distinct citers.
cited Cited as authority (rule) CRE Niagara Holdings, LLC v. Resorts Group, Inc.
Del. Super. Ct. · 2022 · confidence medium
Countercl. and Third-Party Compl. at ¶ 434. 137 CHS Theatres, 2015 WL 1839684 , at *22 (internal citations omitted). 138 Lanzi v. Brooks, 388 N.Y.S.2d 946, 948 (N.Y.
discussed Cited as authority (rule) North Fork Partners Investment Holdings, LLC v. Bracken
S.D.N.Y. · 2021 · confidence medium
A complaint based on a statement of future intention must allege facts to show that the defendant, at the time the promissory representation was made, never intended to honor or act on his statement.” Lanzi v. Brooks, 388 N.Y.S.2d 946, 948 (3rd Dep’t 1976).
discussed Cited as authority (rule) J&R Multifamily Group, Ltd. v. UBS Real Estate Securities, Inc.
S.D.N.Y. · 2019 · confidence medium
Sazerac Co. v. Falk, 861 F. Supp. 253, 260 (S.D.N.Y. 1994) (“In order to state a claim in fraud, [plaintiff] ‘must not only reasonably believe that the representation is true, but he must also be justified in taking action in reliance thereon.’” (quoting Lanzi v. Brooks, 54 A.D.2d 1057, 1058 (3d Dep’t 1976), aff’d, 43 N.Y.2d 778 (1977)); see also Apex Oil Co. v. Belcher Co. of New York, Inc., 855 F.2d 997, 1009 (2d Cir. 1988) (reversing a finding of fraud on reliance grounds because plaintiff did not believe defendant’s misrepresentations); N.Y.
examined Cited as authority (rule) Braddock v. Braddock (6×)
N.Y. App. Div. · 2009 · confidence medium
While an inference that the promisor never intended to fulfill his promise should not be based solely upon the assertion that the promise was not, in fact, fulfilled (see Brown v Lockwood, 76 AD2d 721, 732-733 [1980]; Lanzi v Brooks, 54 AD2d at 1058), we must recognize that a present intention not to fulfill a promise is generally inferred from surrounding circumstances, since people do not ordinarily acknowledge that they are lying.
discussed Cited as authority (rule) Abernathy-Thomas Engineering Co. v. Pall Corp.
E.D.N.Y · 2000 · confidence medium
See Getty Petroleum Corp. v. Delorio, 194 A.D.2d 762, 763 , 599 N.Y.S.2d 829, 831 (2d Dep’t 1993); Lanzi v. Brooks, 54 A.D.2d 1057, 1058 , 388 N.Y.S.2d 946, 948 (3d Dep’t 1976), aff'd, 43 N.Y.2d 778 , 402 N.Y.S.2d 384 , 373 N.E.2d 278 (1977); Brown v. Lockwood, 76 A.D.2d 721, 732-33 , 432 N.Y.S.2d 186, 195 (2d Dep’t 1980) (“Fraudulent intent not to perform a promise cannot be inferred merely from the fact of nonperformance.... ”).
cited Cited as authority (rule) Trionic Associates, Inc. v. Harris Corp.
E.D.N.Y · 1998 · confidence medium
Frutico v. Bankers Trust Co., 833 F.Supp. 288, 299-300 (S.D.N.Y.1993); Lanzi v. Brooks, 54 A.D.2d 1057 , 388 N.Y.S.2d 946, 948 (1976).
discussed Cited as authority (rule) Non-Linear Trading Co. v. Braddis Associates, Inc.
N.Y. App. Div. · 1998 · confidence medium
A complaint based upon a statement of future intention must allege facts to show that the defendant, at the time the promissory representation was made, never intended to honor or act on his statement” (Lanzi v Brooks, supra, at 1058).
discussed Cited as authority (rule) Gruntal & Co., Inc. v. San Diego Bancorp
S.D.N.Y. · 1995 · confidence medium
“Under New York law, ‘to plead a prima facie case of fraud the plaintiff must allege representation of a material existing fact, falsity, scienter, deception and injury.’ ” Adler & Shaykin v. Wachner, 721 F.Supp. 472, 479-80 (S.D.N.Y.1988) (citing Lanzi v. Brooks, 54 A.D.2d 1057, 1058 , 388 N.Y.S.2d 946, 947 (3d Dep’t 1976), aff'd, 43 N.Y.2d 778 , 402 N.Y.S.2d 384 , 373 N.E.2d 278 (1977)).
discussed Cited as authority (rule) Cooper v. Peterson
N.Y. Sup. Ct. · 1995 · confidence medium
Plaintiffs’ Misrepresentation, Fraud, and Estoppel Causes of Action: Defendants correctly assert that CPLR 3016 (b) requires that a cause of action based upon misrepresentation or fraud requires "the circumstances constituting the wrong * * * be stated in detail.” In Lanzi v Brooks ( 54 AD2d 1057, 1058 [1976]), the Third Department held that in order to plead a prima facie case each of the essential elements must be supported by factual allegations sufficient to satisfy CPLR 3016 (b).
cited Cited as authority (rule) MTV Networks, a Division of Viacom International, Inc. v. Curry
S.D.N.Y. · 1994 · confidence medium
Lanzi v. Brooks, 54 A.D.2d 1057 , 388 N.Y.S.2d 946, 948 (3d Dept.1976), aff'd, 43 N.Y.2d 778 , 402 N.Y.S.2d 384 , 373 N.E.2d 278 (1977).
discussed Cited as authority (rule) Sazerac Co., Inc. v. Falk
S.D.N.Y. · 1994 · confidence medium
In order to state a claim in fraud, Sazerac “must not only reasonably believe that the representation is true, but he must also be justified in taking action in reliance thereon.” Lanzi v. Brooks, 54 A.D.2d 1057 , 388 N.Y.S.2d 946, 948 (3d Dept.1976), aff'd, 43 N.Y.2d 778 , 402 N.Y.S.2d 384 , 373 N.E.2d 278 (1977).
discussed Cited as authority (rule) Giuliano v. Everything Yogurt, Inc.
E.D.N.Y · 1993 · confidence medium
However, New York courts recognize a cause of action for fraud where a party misrepresents its present intent to act in accordance with its represented future conduct or knows that its projections of anticipated profits are false when made, and the injured party justifiably relies on those misrepresentations to its detriment, see, e.g., United States v. Amrep Corp., 560 F.2d 539 , 544 (2d Cir.1977) (expression of opinion as to anticipated profits, if not honestly believed by the speaker, is a factual misrepresentation), cert. denied, 434 U.S. 1015 , 98 S.Ct. 731 , 54 L.Ed.2d 759 (1978); Lanzi …
discussed Cited as authority (rule) Couri v. Westchester Country Club, Inc.
N.Y. App. Div. · 1992 · confidence medium
Here, although the plaintiffs allege that the respondents wrongfully induced them to enter into the settlement agreement by representing that they would make "every effort” to commence a project to renovate the exterior of the clubhouse in 1989, the plaintiffs’ complaint failed to allege that the respondents entered into the agreement with "a present intent not to carry out the promises of future action” (Lanzi v Brooks, supra, at 779).
discussed Cited as authority (rule) Mergler v. Crystal Properties Associates, Ltd.
N.Y. App. Div. · 1992 · confidence medium
(See, Lanzi v Brooks, supra, at 1059.) Even if such a statement could be considered as a representation of fact, and even if, arguendo, it be false, there is no allegation, much less any "specific and detailed” evidence in the record, to support such an allegation, i.e., that Bloom knew his statement to be false when made.
discussed Cited as authority (rule) Deligiannis v. PepsiCo, Inc.
S.D.N.Y. · 1991 · confidence medium
Lanzi v. Brooks, 54 A.D.2d 1057 , 388 N.Y.S.2d 946 *254 (3d Dept.1976), aff 'd, 43 N.Y.2d 778 , 402 N.Y.S.2d 384 , 373 N.E.2d 278 (1977); Radish Pharmacy, Inc. v. Blue Cross and Blue Shield of Greater New York, Inc., 114 A.D.2d 439 , 494 N.Y.S.2d 354, 355-56 (2d Dept.1985), appeal dismissed, 68 N.Y.2d 641 , 505 N.Y.S.2d 72 , 496 N.E.2d 231 (1986); Tesoro Petroleum Corp. v. Holborn Oil Co., 108 A.D.2d 607, 607 , 484 N.Y.S.2d 834, 835 (1st Dept.1985).
cited Cited as authority (rule) Burke v. Bevona
E.D.N.Y · 1990 · confidence medium
Id. (citing Lanzi v. Brooks, 54 A.D.2d 1057, 1058-59 (3rd Dep’t 1976), aff’d, 43 N.Y.2d 778 , 402 N.Y.S.2d 384 , 373 N.E.2d 278 (1977)).
cited Cited as authority (rule) Fink v. Citizens Mortgage Banking Ltd.
N.Y. App. Div. · 1989 · confidence medium
However, "any inference drawn from the fact that [an] expectation did not occur is not sufficient to sustain the plaintiff’s burden” (Lanzi v Brooks, supra, at 1058).
discussed Cited as authority (rule) Sanitoy, Inc. v. Shapiro
S.D.N.Y. · 1989 · confidence medium
See Murray v. Xerox Corp., 811 F.2d 118 , 122 (2d Cir.1987); Schwartz v. Newsweek, 653 F.Supp. 384, 389 (S.D.N.Y.1986), aff'd, 827 F.2d 879 (2d Cir.1987); Lanzi v. Brooks, 54 A.D.2d 1057 , 388 N.Y.S.2d 946, 948 (3d Dep’t 1976), aff'd, 43 N.Y.2d 778 , 402 N.Y.S.2d 384 , 373 N.E.2d 278 (1977).
discussed Cited as authority (rule) Singer v. Bell
unknown court · 1985 · confidence medium
See Deyo v. Hudson, 225 N.Y. 602, 122 N.E. 635 (1919); Harris v. Perl, 41 N.J. 455 , 197 A.2d 359, 365 (1964); Lanzi v. Brooks, 54 A.D.2d 1057 , 388 N.Y.S.2d 946, 948 (3d Dep't 1976), aff’d, 43 N.Y.2d 778 , 373 N.E.2d 278 , 402 N.Y.S.2d 384 (1977); Verschell v. Pike, 85 A.D.2d 690 , 445 N.Y.S.2d 489, 491 (2d Dep’t 1981); Harris v. Camilleri, 77 A.D.2d 861 , 431 N.Y.S.2d 65, 68 (2d Dep’t 1980). 21 .
discussed Cited as authority (rule) Gibbons v. Udaras Na Gaeltachta
S.D.N.Y. · 1982 · confidence medium
While a mere failure of promised performance normally does not permit a factual finding that the defendant never intended to perform the promised act, see Lanzi v. Brooks, 54 A.D.2d 1057, 1058 , 388 N.Y.S.2d 946, 948 (3d Dep’t 1976), aff’d, 43 N.Y.2d 778 , 402 N.Y.S.2d 384 , 373 N.E.2d 278 (1977), the trier of fact would surely be permitted to draw such an inference of scienter from the abject failure of performance that allegedly occurred here.
examined Cited as authority (rule) Samuels v. Eleonora Beheer, B. V. (3×) also: Cited "see, e.g."
S.D.N.Y. · 1980 · confidence medium
Reno v. Bull, 226 N.Y. 546, 550 , 124 N.E. 144 (1919); Ochs v. Woods, 221 N.Y. 335, 338 , 117 N.E. 305 (1917); Lanzi v. Brooks, 54 A.D.2d 1057 , 388 N.Y.S.2d 946, 947 (3d Dep’t 1976). 6 .
examined Cited as authority (rule) Harris v. Camilleri (3×) also: Cited "see, e.g."
N.Y. App. Div. · 1980 · confidence medium
In addition, there is a further infirmity attending the first cause of action, for as the Third Department has observed: "Absent a present intent to deceive, a statement of future intentions, promises or expectations is not actionable on the grounds of fraud” (Lanzi v Brooks, supra, p 1058).
discussed Cited "see" Lam v. American Express Co. (2×)
S.D.N.Y. · 2003 · signal: see · confidence high
See Lanzi v. Brooks, 54 A.D.2d 1057 , 388 N.Y.S.2d 946, 947-948 (3rd Dep’t 1976); Abelman v. Shoratlantic Dev.
discussed Cited "see" Edelman v. Buchanan
N.Y. App. Div. · 1996 · signal: see · confidence high
Significantly, "[t]he mere fact that the expected performance was not realized is insufficient to demonstrate that [the promisor] falsely stated its intentions” (Laing Logging v International Paper Co., 228 AD2d 843, 845 ; see, Lanzi v Brooks, 54 AD2d 1057, 1058 , affd 43 NY2d 778 ).
discussed Cited "see" Balaber-Strauss v. New York Telephone (In Re Coin Phones, Inc.)
Bankr. S.D.N.Y. · 1996 · signal: accord · confidence high
See Robitzek v. Reliance Intercontinental Corp., 1 A.D.2d 407, 409, 183 N.Y.S.2d 870, 872 (1st Dep’t 1959) (quoting Prosser, Law of Torts, p. 554) (“the party deceived must not only be justified in his belief that the representation is true, but he also must be justified in taking action on that basis”); accord Lanzi v. Brooks, 54 A.D.2d *204 1057, 1058-1059, 388 N.Y.S.2d 946, 948 (3rd Dep’t 1976); Burke v. Owen, 168 A.D.2d 722, 723 , 563 N.Y.S.2d 869, 870 (3rd Dep’t 1990) (holding that “fraudulent and/or negligent misrepresentation” was not met because the “plaintiff did not c…
cited Cited "see" Red Ball Interior Demolition Corp. v. Palmadessa
S.D.N.Y. · 1995 · signal: see · confidence high
See Lanzi v. Brooks, 388 N.Y.S.2d 946, 948 (3d Dept.1976), aff'd, 43 N.Y.2d 778 (N.Y.1977).
discussed Cited "see" Red Ball Interior Demolition Corp. v. Palmadessa (2×)
S.D.N.Y. · 1995 · signal: see · confidence high
See Lanzi v. Brooks, 54 A.D.2d 1057 , 388 N.Y.S.2d 946, 948 (3d Dept.1976), aff'd, 43 N.Y.2d 778 , 402 N.Y.S.2d 384 , 373 N.E.2d 278 (N.Y.1977).
discussed Cited "see" Frutico, S.A. de C.V. v. Bankers Trust Co. (2×)
S.D.N.Y. · 1993 · signal: see · confidence high
See Lanzi v. Brooks, 54 A.D.2d 1057 , 388 N.Y.S.2d 946, 948 (3d Dep’t 1976), aff'd, 43 N.Y.2d 778 , 402 N.Y.S.2d 384 , 373 N.E.2d 278 (1977).
discussed Cited "see" Marcraft Recreation Corp. v. Francis Devlin Co. (2×)
S.D.N.Y. · 1981 · signal: see · confidence high
See Lanzi v. Brooks, 388 N.Y.S.2d 946, 948 , 54 A.D.2d 1057, 1058 (3d Dep’t 1976), aff’d, 402 N.Y.S.2d 384 , 43 N.Y.2d 778 , 373 N.E.2d 278 (1977).
discussed Cited "see" Gilheany v. Civil Service Employees Ass'n
N.Y. App. Div. · 1977 · signal: see · confidence high
The petitions, however, lack specificity as to the fraudulent conduct complained of and, therefore, fail to state the elements of a cause of action in fraud (CPLR 3016, subd [b]; see Lanzi v Brooks, 54 AD2d 1057 ).
discussed Cited "see, e.g." In re Simon II Litigation (2×)
E.D.N.Y · 2002 · signal: see, e.g. · confidence low
See, e.g., Lanzi v. Brooks, 54 A.D.2d 1057 , 388 N.Y.S.2d 946, 948 (3d Dep’t 1976).
cited Cited "see, e.g." W. L. Christopher, Inc. v. Seamen's Bank for Savings
N.Y. App. Div. · 1988 · signal: see also · confidence low
Schools v Honeywell, Inc., supra; see also, Lanzi v Brooks, 54 AD2d 1057, 1058 , affd 43 NY2d 778 ).
discussed Cited "see, e.g." Billing v. Slauenwhite
N.Y. App. Div. · 1988 · signal: see also · confidence low
Agency, 80 AD2d 889, 890 ; see also, Lanzi v Brooks, 54 AD2d 1057, 1058 , affd 43 NY2d 778 , mot to amend remittitur granted 43 NY2d 947 , rearg denied 44 NY2d 733 ; Levy v Country Lake Homes, 133 AD2d 70, 71 ; Glassman v Catli, 111 AD2d 744 ; Harris v Camilleri, 77 AD2d 861, 863 ; Ahern v General Acc. Fire & Life Assur.
cited Cited "see, e.g." Manufacturers & Traders Trust Co. v. Cottrell
N.Y. App. Div. · 1979 · signal: see also · confidence low
The failure to perform constitutes a breach of contract (Wegman v Dairylea Co-op., 50 AD2d 108, 113 ; see, also, Lanzi v Brooks, 54 AD2d 1057 , affd 43 NY2d 778 ).
Joseph Lanzi, Respondent,
v.
Arthur Brooks, Appellant
Appellate Division of the Supreme Court of the State of New York.
Nov 24, 1976.
54 A.D.2d 1057
Cited by 131 opinions  |  Published

— Appeal from an order of the Supreme Court at Special Term, entered March 29, 1976 in Columbia County, which denied defendant’s motion to dismiss plaintiff’s complaint for failure to state a cause of action. This is an action to recover damages for fraud and deceit. In his first cause of action, plaintiff alleges that prior to October, 1964, all the stock of Textile By-Products Corporation was owned by a trust created by defendant’s father-in-law and that defendant was vice-president of the corporation and in exclusive control thereof; that the corporation was in serious financial and production difficulties at that time; that the defendant made certain fraudulent representations to plaintiff which plaintiff relied on in accepting a position with the corporation as production manager in October of 1964; that the corporation prospered after plaintiff began work at the corporation; that plaintiff received a salary of $25,000 a year plus a substantial bonus from the corporation’s profits; that the stock of the corporation was sold in 1968 to the defendant, his wife, two sales representatives and the plaintiff (who received one sixth of the total shares); that the plaintiff was fired by the defendant on June 20, 1975, contrary to the representations made to him by the defendant in 1964; and that he was removed as a director. In his second cause of action plaintiff alleges that he invented a new type of padded car roof in 1967 which he was advised could be patented; that the defendant represented to the plaintiff that if he refrained from obtaining a patent and allowed the corporation to manufacture the product, they would avoid litigation and the bonus of the plaintiff would be increased; and that the[*1058] plaintiff relied on this statement and was thereby deprived of royalties in the amount of $3,000,000. In the third cause of action, plaintiff seeks punitive damages, alleging that there existed a confidential relationship between the parties and that the defendant acted maliciously. In our view, Special Term erred in denying defendant’s motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211 (subd [a], par 7). To plead a prima facie case of fraud the plaintiff must allege representation of a material existing fact, falsity, scienter, deception and injury. (Reno v Bull, 226 NY 546, 550.) In addition, each of these essential elements must be supported by factual allegations sufficient to satisfy the requirement of CPLR 3016 (subd [b]) that "the circumstances constituting the wrong shall be stated in detail” when a cause of action based upon fraud or breach of trust is alleged. CPLR 3016 (subd [b]) imposes a more stringent standard of pleading than the generally applicable "notice of the transaction” rule of CPLR 3013, and complaints based on fraud or breach of trust which fail in whole or in part to meet this special test of factual pleading have consistently been dismissed (see Block v Landegger, 44 AD2d 671; Meltzer v Klein, 29 ÁD2d 548). Measured against this standard it is apparent that the complaint fails to state a cause of action. Defendant accurately contends that the alleged falsity of all representations in the first cause of action except for that relating to the method of future profit sharing, not heretofore mentioned, is contradicted by other allegations in the first cause of action. Plaintiff thus concedes that the following alleged misrepresentations were not in fact misrepresentations but actually were facts which occurred: That the Textile By-Products Corporation would pay plaintiff an annual salary of $25,000, plus a substantial bonus, to be based on any increase in gross profits of the corporation; that plaintiff would be allowed to purchase a substantial portion of the corporation’s stock on time and out of the moneys which he would obtain from the bonus on the profits. This leaves only one alleged false representation in support of the first cause of action, viz,, the purported profit sharing arrangement between the parties. Plaintiff alleges that the defendant "falsely, fraudulently and with intent to deceive the plaintiff, represented to the plaintiff that after the purchase of the stock from the said Adolph Lorch estate, that they would continue to operate throughout the existence of the corporation; that instead of declaring dividends from the profits in accordance with the proportionate share of the stocks, they would divide equally the profits in the form of equal salaries and equal bonuses and that this arrangement would continue through the life of the corporation.” Absent a present intent to deceive, a statement of future intentions, promises or expectations is not actionable on the grounds of fraud (Adams v Clark, 239 NY 403). A complaint based upon a statement of future intention must allege facts to show that the defendant, at the time the promissory representation was made, never intended to honor or act on his statement. Moreover, any inference drawn from the fact that the expectation did not occur is not sufficient to sustain the plaintiff’s burden of showing that the defendant falsely stated his intentions. Plaintiff’s complaint neither alleges that defendant falsely stated his future intentions at the time he purportedly made the profit-sharing representation nor contains any factual assertions from which this conclusion can be drawn. Finally, in order to be actually deceived by a false representation, a party must not only reasonably believe that the representation is true, but he must also be justified in taking action in reliance thereon. Here, the plaintiff could not justifiably rely on the alleged representation made with respect to future profit sharing, which was made by the defendant when the corporation was[*1059] still owned by a trust created by defendant’s father-in-law. Accordingly, the plaintiff knew or should have known that the defendant did not have the ability to make such a continuing guarantee. Defendant properly points out that plaintiff should have been aware of the legal limitations on defendant’s authority and certainly could not believe that the corporation would enter into a profit-sharing plan between only plaintiff and defendant in perpetuity, which might well have been an illegal infringement upon the rights of the majority stockholders who were excluded. The second cause of action fails to state a cause of action in fraud and deceit as a matter of law. It differs from the first cause of action in that it contains the additional alleged misrepresentations that "if the plaintiff would refrain from obtaining a patent and allow the Textile By-Products Corporation to manufacture the product, they would avoid litigation with other companies, and that the bonus of the said plaintiff would be greatly increased because he and the plaintiff could envision greatly increased profits to the corporation, thus greatly increasing the bonus to the plaintiff.” These allegations rely on a statement in which the defendant purportedly speculated about what he thought might happen in the future. Such a representation cannot support an action for fraud since it is not a statement of fact, but rather an expression of opinion (Banner v Lyon & Healy, Inc., 249 App Div 569, affd 277 NY 570). Moreover, plaintiff did for a number of years receive substantially increased profits. The third cause of action must also fall since it pleads merely a conclusional statement of an alleged breach of a relationship of trust and confidence between the parties for breach of which punitive damages are sought. Order reversed, on the law and the facts, and complaint dismissed, with costs. Koreman, P. J., Greenblott, Sweeney, Mahoney and Larkin, JJ., concur.