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

311
CA 12-01354
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


TRAHWEN, LLC, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MING 99 CENT CITY #7, INC., DOING BUSINESS
AS 99 CENT CITY, DONGXIA JIANG, LIZHONG LIU,
SI MING HUANG AND SUI ZHEN NI,
DEFENDANTS-APPELLANTS.


VAUGHN D. LANG, SYRACUSE, D.J. & J.A. CIRANDO, ESQS. (JOHN A. CIRANDO
OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (ALAN J. DEPETERS OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered January 3, 2012. The order, among other things,
adjudged that defendants are liable to plaintiff for breach of lease.

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

     Memorandum: Plaintiff, the owner of a retail shopping center,
commenced this action seeking damages arising from the alleged breach
of a commercial lease agreement for rental space within the shopping
center. The lease was personally guaranteed by the individual
defendants. In their answer, defendants alleged that they were
fraudulently induced to enter into the lease by plaintiff’s
predecessor in interest, BG New Hartford, LLC (BG), and they sought
damages “suffered as a result of the fraudulent inducement to enter
into the lease.” Supreme Court granted in part plaintiff’s motion for
summary judgment by granting plaintiff partial summary judgment on
liability and dismissing “any and all affirmative defenses and
counterclaims” of defendants. We affirm.

      Plaintiff established its entitlement to judgment as a matter of
law based on defendants’ breach of the lease, and defendants failed to
raise an issue of fact with respect to plaintiff’s alleged fraudulent
inducement, which appears to be asserted both as an affirmative
defense and as a counterclaim (see generally Zuckerman v City of New
York, 49 NY2d 557, 562). In order to establish plaintiff’s alleged
fraudulent inducement, defendants were required to establish the
existence of “a material representation, known to be false, made with
the intention of inducing reliance, upon which the victim actually
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                                                         CA 12-01354

relies, consequently sustaining a detriment” (Merrill Lynch, Pierce,
Fenner & Smith, Inc. v Wise Metals Group, LLC, 19 AD3d 273, 275; see
Wright v Selle, 27 AD3d 1065, 1067).

     Here, defendants’ allegations of fraudulent inducement are based
upon the alleged representation of BG that the retail space adjacent
to the location rented by defendant Ming 99 Cent City #7, Inc., doing
business as 99 Cent City (99 Cent City), within the New Hartford
Consumer Square Shopping Center had been “leased to others” when, in
fact, the adjacent space was vacant. Defendants further alleged that,
if the adjacent space had been occupied, there would have been
increased pedestrian and vehicular traffic in that section of the
shopping center, which would have resulted in “an acceptable economic
environment” for 99 Cent City. The record, however, is devoid of
evidence that a tenant occupying adjacent space would have produced an
increase in customers or sales at 99 Cent City. Defendants’ verified
answer, their verified bill of particulars, and the affidavit of
defendant Dongxia Jiang, the only documents relied upon by defendants
in opposition to plaintiff’s motion, contain nothing more than
speculation and conclusory assertions that BG’s representation, even
if untrue, resulted in a detriment to defendants. Such conclusory and
speculative assertions are insufficient to defeat a motion for summary
judgment (see Elmer v Kratzer, 249 AD2d 899, 901, appeal dismissed 92
NY2d 921; see also Dolansky v Frisillo, 92 AD3d 1286, 1288).




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
