Abrahami v. UPC Construction Co. , 176 A.D.2d 180 ( 1991 )

— Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered December 14, 1990, as amended and supplemented by order of the same court and Justice, entered January 17, 1991, granting, in part, defendants’ motion, pursuant to CPLR 3016 (b), to dismiss the first cause of action of plaintiffs’ verified complaint, and moving defendants’ motion, pursuant to CPLR 3211 (a) (7), to dismiss the second cause of action of the verified complaint, unanimously affirmed, without costs.

Plaintiffs’ verified complaint alleges, inter alia, that defendants fraudulently misrepresented facts with respect to UPC’s profitability, in order to induce plaintiffs to invest $750,000 in UPC. The Court properly dismissed the first cause of action, sounding in fraud and conspiracy to commit fraud, as against the moving defendants, except Heo Peh Lee. While Lee was alleged to have made false representations to plaintiffs on various occasions, the verified complaint failed to satisfy the specificity and particularity requirements of CPLR 3013 and 3016 (b) as to the other moving defendants, since there were no factual allegations alleging that these defendants had made any fraudulent representations to plaintiff or allegations of fact from which it could be inferred that they had agreed or entered into an understanding with the other defendant (against which particular acts of fraud were alleged) to cooperate in any fraudulent scheme. (National Westminster Bank v Weksel, 124 AD2d 144, 147, lv denied 70 NY2d 604; Ferguson v Meridian Distrib. Servs., 155 AD2d 642.)

Plaintiffs’ second cause of action, alleging a claim for money had and received, was also properly dismissed, since they failed to allege receipt of moneys by the moving defendants (Steinberg v Guild, 22 AD2d 775, affd 16 NY2d 791, mot to amend remittur granted 16 NY2d 960). Concur — Sullivan, J. P., Carro, Milonas and Kupferman, JJ.