SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts
October 5, 2012
STEVEN CILENTO AND CHANA CILENTO, RESPONDENTS,
SMYRNA BUILDING CORP., NASSER YAGHOOBZADEH AND VICTOR FREUDMAN, APPELLANTS.
Appeals from a decision of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), dated March 10, 2010, an order of the same court entered June 15, 2010, and a judgment of the same court entered March 15, 2011.
Cilento v Smyrna Bldg. Corp.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on October 5, 2012
PRESENT: WESTON, J.P., RIOS and SOLOMON, JJ
The order entered June 15, 2010 denied defendants' motion to expunge the trial record of court exhibits obtained by the court through its use of governmental Web sites. The judgment, entered pursuant to the March 10, 2010 decision, after a non-jury trial, awarded plaintiffs the principal sum of $10,992.68 as against defendants Nasser Yaghoobzadeh and Victor Freudman.
ORDERED that the appeal from the decision is dismissed as no appeal lies from a decision (CCA 1702; see Greenfield v Tassinari, 8 AD3d 529 ); and it is further,
ORDERED that the appeal from the order entered June 15, 2010 dismissed as the right of direct appeal therefrom terminated with entry of the judgment (see Matter of Aho, 39 NY2d 241, 248 ); and it is further,
ORDERED that so much of the appeal as was taken by defendant Smyrna Building Corp. from the judgment is dismissed on the ground that the judgment grants no relief against this defendant and, accordingly, it is not aggrieved by the judgment (see CPLR 5511); and it is further,
ORDERED that the judgment is reversed, without costs, and so much of the complaint as is asserted against defendants Nasser Yaghoobzadeh and Victor Freudman is dismissed.
Plaintiffs entered into contracts with the corporate defendant to purchase a newly constructed house. Plaintiffs allege that the corporate defendant as well as the individual defendants, Nasser Yaghoobzadeh and Victor Freudman, the officers and shareholders of the corporate defendant, committed fraud and/or negligent misrepresentation, in that they failed to provide plaintiffs with a tax abatement pursuant to Real Property Tax Law § 421-b after inducing plaintiffs to purchase their home by making representations that they would receive such a tax abatement.
After a non-jury trial, the Civil Court found, as relevant to this appeal, that plaintiffs had failed to establish their prima facie case as against the individual defendants. Nevertheless, the Civil Court, sua sponte, found, "in the interest of just[ice]," that the individual defendants had violated General Business Law § 349 and awarded plaintiffs judgment in the principal sum of $10,992.68 as against the individual defendants.
It is well settled that "where. . . a plaintiff has failed to make a prima facie case, the action must be dismissed" (Kinkopf v Triborough Bridge & Tunnel Auth., 6 Misc 3d 73, 74-75 [App Term, 2d & 11th Jud Dists 2004]). Plaintiffs' amended complaint made no mention of a violation of General Business Law § 349, nor did it allege that the individual defendants had directed their misrepresentations at "members of the public generally" (Flax v Lincoln Natl. Life Ins. Co., 54 AD3d 992, 995 ; see Crown Assoc. v Zot, LLC, 83 AD3d 765, 767-768 ), a necessary element of a cause of action based on section 349. Once the Civil Court determined that the individual defendants had committed neither fraud nor negligent representation, the only issues litigated by the parties, it should have dismissed so much of the complaint as was asserted against the individual defendants (see Kinkopf, 6 Misc 3d at 74-75). Accordingly, the judgment against the individual defendants is reversed and so much of the complaint as is asserted against defendants Nasser Yaghoobzadeh and Victor Freudman is dismissed.
In view of the foregoing, the issue raised with respect to the order entered June 15, 2010 has been rendered academic.
Weston, J.P., Rios and Solomon, JJ., concur. Decision Date: October 05, 2012
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