        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1242
CA 16-00328
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.


HOGAN WILLIG, PLLC, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CARRIE W. KAHN, ALSO KNOWN AS CARRIE H. KAHN,
INDIVIDUALLY, DEFENDANT-RESPONDENT,
ET AL., DEFENDANTS.


HOGAN WILLIG, PLLC, AMHERST (LINDA LALLI STARK OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

PERSONIUS MELBER LLP, BUFFALO (BRIAN M. MELBER OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John A.
Michalek, J.), entered May 18, 2015. The order granted the motion of
defendant Carrie W. Kahn, also known as Carrie H. Kahn, in her
individual capacity, for summary judgment dismissing plaintiff’s
amended complaint against her in her individual capacity.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Dennis Alan Kahn (Kahn), the late husband of Carrie
W. Kahn, also known as Carrie H. Kahn (defendant), was the owner of
the law firm Siegel, Kelleher & Kahn (SKK). After being diagnosed
with a serious health condition, Kahn approached a representative of
plaintiff, a law firm, seeking to facilitate discussions about the
possible acquisition of SKK by plaintiff. It is undisputed that
discussions subsequently occurred that eventually led to plaintiff’s
acquisition of SKK’s business, but the nature and extent of
defendant’s involvement in those discussions is in dispute. According
to plaintiff, there were various misrepresentations and omissions
regarding, among other things, SKK’s financial state and liabilities,
the quantity and value of SKK’s client files, and the status of claims
by creditors. Subsequent to Kahn’s death, plaintiff commenced this
action against SKK, and against defendant in her individual capacity
and as the executrix of Kahn’s estate, alleging various causes of
action and seeking damages for losses it allegedly incurred in
resolving the issues associated with the misrepresentations and
omissions. As limited by its brief on appeal, plaintiff contends that
Supreme Court erred in granting the motion of defendant, in her
individual capacity, seeking summary judgment dismissing the amended
complaint against her to the extent that it asserted causes of action
                                 -2-                          1242
                                                         CA 16-00328

for fraudulent inducement, fraudulent concealment, and unjust
enrichment. We affirm.

      As an initial matter, we reject plaintiff’s contention that
summary judgment was premature because it had not conducted
depositions (see generally CPLR 3212 [f]). Plaintiff failed to
establish that facts essential to oppose the motion were in
defendant’s exclusive knowledge and possession, and its mere hope that
conducting depositions would disclose evidence to prove its case is
insufficient to support denial of the motion (see Boyle v
Caledonia-Mumford Cent. Sch., 140 AD3d 1619, 1621-1622; Kremer v
Sinopia LLC, 104 AD3d 479, 481; Denby v Pace Univ., 294 AD2d 156, 156-
157).

     Contrary to plaintiff’s further contention, the court properly
granted those parts of defendant’s motion for summary judgment
dismissing the fraudulent inducement and fraudulent concealment causes
of action against her in her individual capacity. “The elements of a
fraud cause of action consist of a misrepresentation or a material
omission of fact which was false and known to be false by [the]
defendant, made for the purpose of inducing the other party to rely
upon it, justifiable reliance of the other party on the
misrepresentation or material omission, and injury” (Pasternack v
Laboratory Corp. of Am. Holdings, 27 NY3d 817, 827, rearg denied 28
NY3d 956 [internal quotation marks omitted]; see Mandarin Trading Ltd.
v Wildenstein, 16 NY3d 173, 178). In addition to the elements for
fraudulent inducement, a cause of action for fraudulent concealment
also requires a duty on the part of the defendant to disclose material
information and the failure to do so (see Mandarin Trading Ltd., 16
NY3d at 179). It is undisputed that defendant established her
entitlement to summary judgment as a matter of law by submitting proof
in admissible form, including her affidavit, that demonstrated the
absence of any triable issues of fact on the fraud causes of action
(see Estate of Giffune v Kavanagh, 302 AD2d 878, 879; see generally
Alvarez v Prospect Hosp., 68 NY2d 320, 324).

     In opposition, plaintiff submitted, among other things, the
affidavits of three of its attorneys who were involved in the
acquisition discussions and who, for the first time, attributed to
Kahn and defendant, collectively, specific misrepresentations and
omissions that had been attributed solely to Kahn in the amended
complaint. Even assuming, arguendo, that there is a factual issue
regarding whether defendant too made such misrepresentations and
omitted material facts, we conclude that plaintiff’s submissions in
opposition to the motion failed to raise triable issues of fact
regarding defendant’s knowledge that the misrepresentations and
omissions attributed to her and Kahn were false and her intent to
induce plaintiff’s reliance (see Estate of Giffune, 302 AD2d at 879).
The record establishes that defendant was not an attorney and had no
involvement with operating SKK’s legal practice. Other than general
assertions of defendant’s presence and involvement in the acquisition
discussions, plaintiff’s submissions establish only that the extent of
defendant’s alleged knowledge and the reason for her involvement were
based upon her position as the spouse of Kahn—the individual with
                                 -3-                          1242
                                                         CA 16-00328

specific knowledge of SKK’s business—following his diagnosis and
decision to divest SKK (see generally MP Cool Invs. Ltd. v Forkosh,
142 AD3d 286, 291). Plaintiff also failed to raise a triable issue of
fact whether its attorneys, who were experienced legal practitioners
with managerial positions at an established law firm, justifiably
relied on the misrepresentations and omissions to the extent that they
were made by defendant (see Evans v Lawrence Arms Assoc., 215 AD2d
717, 717-718). Based on the foregoing, we conclude that the court
properly granted those parts of defendant’s motion for summary
judgment dismissing the fraud causes of action against her in her
individual capacity.

     We also conclude that the court properly granted summary judgment
dismissing the fraudulent concealment cause of action for the
additional reason that defendant had no duty to disclose. Plaintiff
does not contend that defendant had a duty to disclose based upon a
fiduciary or confidential relationship, and plaintiff’s submissions
fail to raise a triable issue of fact whether defendant had superior
knowledge of essential facts rendering nondisclosure inherently unfair
(see Barrett v Freifeld, 77 AD3d 600, 601-602).

     Plaintiff also contends that the court erred in granting that
part of defendant’s motion for summary judgment dismissing the unjust
enrichment cause of action, alleging that defendant in her individual
capacity was enriched at plaintiff’s expense based upon a presentation
that it gave to defendant’s creditors. We reject that contention.
“ ‘A cause of action for unjust enrichment requires a showing that (1)
the defendant was enriched, (2) at the expense of the plaintiff, and
(3) that it would be inequitable to permit the defendant to retain
that which is claimed by the plaintiff . . . The essence of such a
cause of action is that one party is in possession of money or
property that rightly belongs to another’ ” (Hayward Baker, Inc. v
C.O. Falter Constr. Corp., 104 AD3d 1253, 1255). Here, defendant met
her initial burden by submitting her affidavit in which she averred
that she negotiated resolutions with the subject creditors through
counsel and paid the debts by agreement without any contribution from
plaintiff. Plaintiff failed to raise a triable issue of fact inasmuch
as its submissions in opposition to the motion provide only conclusory
and vague statements that defendant benefitted from plaintiff’s
involvement with the creditors, and plaintiff has asserted no facts
suggesting that defendant was in possession of money belonging to it
(see id.; Clifford R. Gray, Inc. v LeChase Constr. Servs., LLC, 31
AD3d 983, 987-988).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
