Summary
holding that in absence of fiduciary relationship between plaintiff and brother's attorneys giving rise to duty to disclose, attorneys' silence did not amount to substantial assistance required for aider or abettor liability in fraud
Summary of this case from Greenberg Traurig v. MoodyOpinion
November 21, 1996.
Judgment, Supreme Court, New York County (Leland DeGrasse, J.), entered August 8, 1995, inter alia, dismissing plaintiffs complaint as against defendants Joseph Gaier, P. C, Joseph Gaier, Larry Sutton and Steven Gold, and bringing up for review an order, same court and Justice, entered on or about July 21, 1995, which, inter alia, granted defendants' motion and cross motion to dismiss for failure to state a cause of action, unanimously affirmed, without costs. The appeal from the order is unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Before: Sullivan, J.P., Rosenberger, Rubin, Kupferman and Williams, JJ.
Since the complaint was devoid of any factual allegation with respect to plaintiffs reliance, or the nature of her damages and how they were caused by her brother's alleged misrepresentation, the allegations of fraud are insufficient to support the cause of action for aiding and abetting fraud. Moreover, in the absence of a confidential or fiduciary relationship between plaintiff and her brother's attorneys giving rise to a duty of disclosure, the silence of the attorneys did not amount to the substantial assistance that is a required element of aider or abettor liability ( see, National Westminster Bank v Weksel, 124 AD2d 144, 148-149, lv denied 70 NY2d 604). Leave to replead this cause of action was properly denied for failure to submit the proposed pleading or set forth its merit.
The malpractice claim was likewise deficient since there was no attorney-client relationship between plaintiff and defendant attorneys ( see, Weiss v Manfredi, 83 NY2d 974, 977). Nor, in light of the dismissal of the aiding and abetting fraud claim, did the attorneys' conduct fall within any exception to the privity requirement ( see, Green v Fischbein, Olivieri, Rozenholc Badillo, 135 AD2d 415, 417-418).