The following papers numbered 1 to 7 read herein:Papers Numbered



Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-2

Opposing Affidavits (Affirmations)3

Reply Affidavits (Affirmations)4

Memoranda of Law5, 6, 7

Plaintiff The Board of Managers of 14 Hope Street Condominium (plaintiff) commenced this action on behalf of the unit owners to recover compensatory and punitive damages allegedly sustained as a result of purported defects in the design and construction of a new building at 14 Hope Street in the Williamsburg section of Brooklyn. Its complaint asserts claims for, inter alia, breach of contract, common-law fraud, negligent misrepresentation, violation of General Business Law §§ 349 and 350, and fraudulent conveyance. Defendant Hope Street Partners, LLC was the sponsor (the Sponsor). Defendants Garo Yegnukian (Garo), Grigor Yegnukian (Grigor), and Milford Partners, LLC (Milford) were the sponsor's members at the time of the filing of the original offering plan; defendants Raymond H. Yu (Raymond), Catherine L. Yu (Catherine), and Moklam Enterprises, Inc. (Moklam) were Milford's members; defendants Raymond and Catherine, together with defendant Patrick K. Yu, were Moklam's shareholders; and the remaining defendant Yuco Management, Inc. (Yuco), an entity owned by the Yu family members, was a proposed managing agent for the building but never assumed that role (collectively, the Non-Sponsors). The Sponsor and the Non-Sponsors (collectively, defendants) jointly move, pre-answer, for an order dismissing certain causes of actions alleged in the complaint insofar as asserted against them under CPLR 3211 (a) (1) as barred by documentary evidence and under CPLR 3211 (a) (7) for failure to state a cause of action.^[FN1]

The units in the building were offered for sale pursuant to a condominium offering plan (the offering plan) submitted by the Sponsor and accepted for filing by the Attorney General's office on Sept. 22, 2008. The offering plan (in § P) includes representations by the Sponsor that it would construct the building in accordance with the descriptions and specifications set forth in that plan. Additionally, the offering plan (as part of document No. 11 [a], at 456-457) appends "Certifications of Sponsor Pursuant to Section 20 of the Regulations Issued Pursuant to General Business Law, Article 23-A, as Amended," dated Sept. 4, 2008, executed by the Sponsor, Milford, Garo, and Grigor. The offering plan's second amendment, dated Sept. 1, 2009, includes an additional certification by the aforementioned parties, as well as by Raymond and Catherine.^[FN2] The certifications recite that each certifying party — after reading the entire offering plan (as amended) and investigating "the facts set forth in the offering plan and the underlying facts" — attests that said plan does not omit any material fact, does not contain any untrue statement of a material fact, does not contain any fraud, deception, or concealment, and does "not contain any representation or statement which is false where [the certifying party]: (a) knew the truth; (b) with reasonable effort could have [*2]known the truth; (c) made no reasonable effort to ascertain the truth; or (d) did not have knowledge concerning the representation or statement made." The certifications warn in a paragraph appearing immediately above the signature line that they are "made under penalty of perjury for the benefit of all persons to whom this offer is made. [The certifying parties] understand that violations are subject to the civil and criminal penalties of the General Business Law and Penal Law.", as required by the Attorney General's regulation 13NYCRR 20.4(b).

Each purchaser of a unit executed a form purchase agreement, with the Sponsor, as seller, which provides (1in § 2.C) that "Plan is hereby incorporated in this Agreement with

the same force and effect as if set forth herein at length." Thus, all of the Sponsor's obligations under the offering plan were thereby incorporated into each individual unit purchaser's purchase agreement. Moreover, a separate certification by the Sponsor and the other certifying Non-Sponsors (Milford, Garo, Grigor, Raymond, and Catherine) formed a part of the offering plan that, likewise, was incorporated by reference into each unit purchaser's purchase agreement.

The Sponsor covenanted (in § 20 [A] of each unit purchaser's purchase agreement) that "[t]he construction of the Units . . . and renovations of the Common Elements . . . shall be substantially in accordance with the Plan (and the architectural plans and specifications' as defined in the Plan), subject to the right reserved by Sponsor to modify and amend the Plan and the plans and specifications' in order to substitute materials, equipment or fixtures of equal or better quality and design. . . ." The Sponsor further covenanted (in § 20 [B]) that "[t]he construction of the Units and of the Common Elements and the correction of any defects in construction or design to the extent required under the Plan are the sole responsibility of the Sponsor."

The Sept. 22, 2008 offering plan was periodically amended over the years, from the first amendment, dated May 14, 2009, through the fifth amendment, dated May 4, 2010.^[FN3] The offering plan's second amendment included an "Addendum to the Description of Property and Building Condition" report, prepared by the Sponsor's engineer. According to the offering plan's second amendment, the engineer's addendum included "non-substantive changes to his report" by "describing the actual as-built condition of the Building." The other amendments identified no physical changes to the Condominium and specifically noted that "[t]here have been no material changes to the Plan."

The complaint alleges, inter alia, that the design and construction of the units and the common areas are deficient, with numerous problems and deviations from what was promised to unit owners. The defects in the units allegedly include mold-causing water infiltration to some units, "separations, warping, cupping, and bulging of wood floors" in a large majority of units, and cracked wall finishes. Some of the alleged defects in the common areas are the leaking roof , defective water piping in the boiler room, and the inadequately sized gas piping at or near the roof. According to the complaint, these and other defects outlined in the complaint are hazardous to the unit residents' life and health.

Initially, defendants contend that plaintiff's claims against them are barred by documentary evidence (i.e., the offering plan and Raymond's affidavit) under CPLR 3211 (a) (1). A motion to dismiss under CPLR 3211 (a) (1) on the grounds that a claim is barred by documentary evidence may be granted only where the "documentary evidence" utterly refutes plaintiff's factual allegations, conclusively establishing a defense to such claim as a matter of law (see Goseh v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]). To be considered "documentary," evidence must be unambiguous and of undisputed authenticity. Mortgages, deeds, contracts, and any other papers, the contents of which are "essentially undeniable," qualify as "documentary evidence" (see Sands Point Partners Private Client Group v Fidelity Natl. Title Ins. Co., 99 AD3d 982, 984 [2d Dept 2012]). [*3]A condominium offering plan has been held to constitute documentary evidence (see Board of Managers of Park Slope Views Condominium v Park Slope Views, LLC, 39 Misc 3d 1221[A], 2013 WL 1849128, *7, 2013 NY Slip Op 50689[U] [Sup Ct, Kings County 2013, Rivera, J.]). Affidavits, however, do not constitute "documentary evidence" (see Fontanetta v Doe, 73 AD3d 78, 85 [2d Dept 2010]). Thus, Raymond's affidavit does not constitute documentary evidence. Even though the offering plan is documentary evidence, it does not constitute "conclusive"evidence. Because plaintiff challenges the truthfulness of the offering plan itself, such plan cannot conclusively establish a defense as a matter of law (see Park Slope, 2013 WL 1849128, *7). Accordingly, the branch of defendants' motion which is to dismiss the complaint under CPLR 3211 (a) (1) is denied (see Board of Managers of Marke Gardens Condominium v 240/242 Franklin Ave., LLC, 71 AD3d 935, 936 [2d Dept 2010]).The CPLR 3211 (a) (7) Defense of Failure to State a Cause of Action

A motion to dismiss under CPLR 3211 (a) (7) for failure to state a cause of action may be granted "when the allegations and inferences do not fit within any cognizable legal theory" (Nadal v Jaramillo, 102 AD3d 843, 844 [2d Dept 2013]). The court "must accept the allegations in the complaint as true and accord the plaintiff every possible favorable inference from them" (id.). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).

Breach of Contract

For its first cause of action, the complaint alleges (in ¶ 104) that "[t]he Sponsor breached its contractual obligations to the unit owners under the Purchase Agreement and the Offering Plan, including . . . representations . . . that the Building, its units, and all improvements therein . . . would be constructed in accordance with the representations in the Offering Plan . . . and . . . would be constructed with the quality of work that is comparable to local standards customary in the particular trade." The complaint concludes (in ¶ 105) that "[b]y reason of the aforementioned breaches of contract, the Condominium (including the unit owners) has been injured in a sum to be determined at trial, . . . for which sum the Sponsor Defendants [a collective term for the moving defendants] are liable to Plaintiff".

The Second Department has held that the sponsor affiliates who executed a certification with the offering plan may be held personally liable (see Birnbaum v Yonkers Contr. Co., 272AD2d 355, 357 [2d Dept 2000]; Zanani v Savad, 228AD2d 584, 585 [2d Dept 1996]; see also Board of Mgrs. of 231 Norman Ave. Condominium v Norman Ave. Prop. Dev., LLC, 36 Misc 3d 1232[A], 2012 WL3590767,*10, 2012 NY slip Op 51573[U] [Sup Ct, Kings County 2012, Demarest, J.]). Because each of the Non-Sponsors Milford, Garo, Grigor, Raymond, and Catherine, executed and delivered a certification as part of the offering plan's second amendment, the branch of defendants' motion for dismissal of the breach of contract claim against the Non-Sponsors Milford, Garo, Grigor, Raymond, and Catherine is denied (see Birnbaum v Yonkers Contr. Co., 272 AD2d 355, 357 [2d Dept 2000]; Zanani v Savad, 228 AD2d 584, 585 [2d Dept 1996]).^[FN4] On the other hand, the remaining Non-Sponsors — Yuco, Patrick, and Moklam — never signed a certification, and plaintiff concedes (on page 9 of its opposition memorandum of law) that it withdraws the breach of contract claim against each of Yuco, Patrick, and Moklam. Therefore, the branch of defendants' motion for dismissal of the breach of contract claim against the Non-Sponsors Yuco, Patrick, and Moklam is granted. [*4]Plaintiff's breach of contract claim against the Sponsor is not affected by this decision and order because, as noted, the Sponsor has not sought dismissal of this claim against it.

Common-Law Fraud

For its second cause of action, the complaint alleges (in ¶ 110) that defendants "made omissions and misrepresentations of fact regarding the Building and its units in the Offering Plan and/or in circulating the Offering Plan and/or in promoting sales of units of the Condominium, after the Building was built, including in sales and marketing materials for the Condominium, which representations were false when made." The complaint continues (in ¶ 46) that "[t]he Offering Plan was never amended to reflect the pervasive construction defects in the Building and thus after the Building was completed, the Offering Plan came to contain many misrepresentations and misleading statements as to the Building's true condition." According to the complaint (in ¶ 46), the offering plan "ceased to serve as an accurate source of information for potential purchasers who bought units in the Building." Nevertheless, defendants allegedly continued to disseminate the offering plan "in order to induce [the public] to purchase . . . units in the Condominium" (¶ 114).

In Kerusa Co. LLC v W10Z/515 Real Estate Ltd. Partnership (12 NY3d 236 [2009]), the Court of Appeals "held that the purchaser of a condominium could not sue the building's sponsor for common-law fraud where the purported fraud was predicated solely on alleged material omissions from the offering plan amendments mandated by the Martin Act (General Business Law art 23-A) and the Attorney General's implementing regulations" (Schlessinger v Valspar Corp., 21 NY3d 166, 2013 WL 2338425, *4, 2013 NY Slip Op 03870 [2013] [emphasis added]).^[FN5] In line with Kerusa, the Second Department held in Board of Managers of Marke Gardens Condominium v 240/242 Franklin Avenue, LLC (71 AD3d 935, 936 [2010]), that the Martin Act did not preclude the condominium board's common-law fraud claims against the sponsor and its manager where "the alleged fraud and material misrepresentations contained not only in the offering plan, but in brochures, advertisements, and purchase agreements, as well as oral statements made by the defendant." The Second Department concluded, "the facts as alleged fit within a cognizable legal theory, and are not precluded by the Martin Act, as they do not "rel[y] entirely on alleged omissions from filings required by the Martin Act and the Attorney General's implementing regulations" (internal quotations marks and citations omitted; emphasis added). Therefore, the Martin Act does not bar plaintiff's common-law fraud claim against defendants.

Defendants next assert, relying on CPLR 3016 (b), that the complaint's allegations regarding common-law fraud are not sufficiently particular to give the Court and parties notice of the underlying transactions intended to be proved. CPLR 3016(b) sets forth heightened particularity requirements for pleading causes of action or defenses based on fraud or mistake. Contrary to defendants' position, the Court finds that the complaint adequately details defendants' allegedly fraudulent misrepresentations/omissions which were allegedly known to them to be false when made, and were made with the intention of inducing the purchase of the units, and on which misrepresentations/omissions the unit purchasers allegedly justifiedly relied on, causing monetary damages.

Defendants maintain that "[a] member of a limited liability company cannot be held liable for the company's obligations by virtue of his [or her] status as a member thereof" (Grammas v Lockwood Assoc., LLC, 95 AD3d 1073, 1074 [2d Dept 2012] [internal quotation marks and citations omitted]). This general rule contains an important exception. "A corporate officer who participates in the commission of a tort may be held individually liable, regardless of whether the officer acted on behalf of the corporation in the course of official duties and regardless of whether the corporate [*5]veil is pierced" (Rajeev Sindhwani, M.D., PLLC v Coe Bus. Serv., Inc., 52 AD3d 674, 677 [2d Dept 2008] [internal quotation marks and citation omitted]). "[A] cause of action [alleging] fraud may be maintained where a [party] pleads a breach of duty separate from, or in addition to, a breach of the contract" (J & D Evans Constr. Corp. v Iannucci, 84 AD3d 1171, 1172 [2d Dept 2011] [emphasis added]). "For example, if a plaintiff alleges that it was induced to enter into a transaction because a defendant misrepresented material facts, the plaintiff has stated a claim for fraud even though the same circumstances also give rise to the plaintiff's breach of contract claim" (First Bank of Ams. v Motor Car Funding, Inc., 257 AD2d 287, 291-292 [1st Dept 1999]). Unlike a misrepresentation of future intent to perform, a misrepresentation of present facts is considered to be collateral to the contract, even though it may have induced the plaintiff to enter into the contract and, therefore, involves a separate breach of duty (see Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954, 956 [1986]).

Here, the complaint fails to meet the requirements of the "separate" or "additional" duty exception. The complaint alleges (in ¶ 123) that "[t]he representations and omissions made by [defendants] in the Offering Plan and/or in circulating the Offering Plan and/or in promoting sales of units of the Condominium based on the Offering Plan's representations were made for the specific purpose of inducing prospective unit owners to purchase units of the condominium" (emphasis added). The complaint fails to allege that the Non-Sponsors made separate material representations to the prospective purchasers with respect to the quality of the building construction and/or lack of defects prior to the execution of the purchase agreement. Put differently, plaintiff does not seek to hold the Non-Sponsors liable for fraud based on the alleged misrepresentations/omissions made by them concerning the quality of construction, separate from (or in addition to) the promises made in the offering plan/purchase agreement, which induced the purchase of the units. Accordingly, dismissal of plaintiff's common-law fraud claim against the Non-Sponsors is warranted.

More fundamentally, plaintiff's common-law fraud claim against all moving defendants (both the Sponsor and the Non-Sponsors) is duplicative of the breach of contract claim. A fraud claim may not be maintained when the only fraud charged relates to the breach of contract (see 34 -35th Corp. v 1-10 Ind. Assoc., LLC, 2 AD3d 711, 712 [2d Dept 2003]). Here, both claims allege, in essence, that defendants promised to build for plaintiff and the unit owners a well-constructed condominium with defect-free apartments and common areas. Because the complaint advances no allegations that the common-law fraud arises from representations that are collateral or extraneous to the offering plan or purchase agreements (see Alamo Contr. Bldrs. v CTF Hotel Co., 242 AD2d 643, 643-644 [2d Dept 1997]), the fraud cause of action is simply redundant (see 34-35th Corp., 2 AD3d at 712). Furthermore, the alleged misrepresentations/omissions did not result in any loss independent of the damages allegedly incurred for breach of contract. The complaint's demand for punitive damages is not dispositive (see Church of South India Malayalam Congregation v Bryant Installations, Inc., 85 AD3d 706, 707 [2d Dept 2011]), and, the complaint fails to plead that defendants' conduct was so gross, wanton, or willful, or of such high moral culpability, as to justify an award of punitive damages (see Schneer v Bellantoni, 250 AD2d 666 [2d Dept 1998]). Accordingly, the branch of defendants' motion for an order, dismissing the common-law fraud claim against them is granted (see Board of Mgrs. of the Crest Condominium v City View Gardens Phase II, LLC, 35 Misc 3d 1223[A], 2012 WL 1660679, *8, 2012 NY Slip Op 508260[U] [Sup Ct, Kings County 2012, Demarest, J.]; Bridge Street Homeowners Assn. v Brick Condominium Devs., LLC, 18 Misc 3d1128[A],2008 WL 344136, *4, 2008 NY Slip Op 50221[U] [Sup Ct, Kings County 2008, Demarest, J.]).^[FN6]

[*6]Negligent Misrepresentation

A claim for negligent misrepresentation, the third cause of action in the complaint, requires the plaintiff to demonstrate, inter alia, "the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff" (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 180 [2011]). "In the commercial context, liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified" (Fresh Direct, LLC v Blue Martini Software, Inc., 7 AD3d 487, 489 [2d Dept 2004] [internal quotation marks and citation omitted]). In addition to a special relationship, a claim of negligent misrepresentation cannot be independently asserted within the context of a breach of contract action unless "the alleged misrepresentation concerns a matter which is extraneous to the contract itself" (Alamo, 242 AD2d at 644).

Here, other than a contractual relationship with the Sponsor (and by virtue of their certifications, the certifying Non-Sponsors), the complaint fails to articulate the nature of the alleged "special relationship" of plaintiff and the unit owners with defendants. Moreover, the negligent misrepresentation claim is duplicative of the breach of contract claim, inasmuch as it alleges no factual basis for recovery other than defendants' failure to keep its promises under the offering plan/purchase agreements, and there are no damages sought that would not be recoverable under a contract measure of damages (see Stewart v Maitland, 39 AD3d 319 [1st Dept 2007]; Finkelstein v Lincoln Natl. Corp., 2009 WL 4735674, 2009 NY Slip Op 32838[U], *9 [Sup Ct, Nassau County 2009]).

General Business Law (GBL) §§ 349 and 350

For its thirteenth cause of action, the complaint alleges that defendants violated GBL §§ 349 and 350 by engaging in deceptive consumer practices and false advertising in connection with the construction of the building and the sale of the units. Specifically, the complaint alleges (in ¶ 204) that defendants "disseminated advertising and promotional information that had an impact on consumers at large because such information was broadly disseminated via the [I]nternet and other media to the general public and, particularly, to those members of the general public who also were potential home buyers." According to the complaint (in ¶ 205), "[t]he advertising and promotional information was false in material ways, including . . . by misrepresenting the quality of construction of the Building (including the common areas and units of the Condominium) and its primary features."

GBL § 349 (a) prohibits deceptive business practices. The elements of such a cause of action are: (a) a deceptive consumer-oriented act or practice which is misleading in a material respect, and (b) injury resulting from such act (see Andre Strishak & Assoc., P.C. v Hewlett Packard Co., 300 AD2d 608, 609 [2d Dept 2002]). A companion statute — GBL § 350 — prohibits false advertising. The challenged advertisement must have had (a) an impact on consumers at large, (b) was deceptive or misleading in a material way, and (c) resulted in injury (see Andre Strishak & Assoc., 300 AD2d at 609).

The Second Department held in Board of Mgrs. of Bayberry Greens Condo. v Bayberry Greens Assocs. (174 AD2d 595, 596 [1991]) that allegations of deceptive practices in the advertisement and sale of condominium units were sufficient to state a claim under GBL § 349. This holding has been extended to GBL § 350 (see Park Slope, 2013 WL 1849128, *13; Board of Managers of Arches at Cobble Hill Condominium v Hicks & Warren, 14 Misc 3d 1234[A], 2007 WL 556897, *10, 2007 NY Slip Op 50297[U] [Sup Ct, Kings County 2007, Demarest, J.]). Accordingly, the GBL §§ 349 and 350 claims survive defendants' motion to dismiss for failure to state a cause of action. At this pre-answer stage of the litigation, the Court need not reach the merits of plaintiff's GBL §§ 349 and 350 claims and, therefore, does not address the issue of whether, as the complaint alleges, defendants disseminated to the public the advertising and promotional information that materially misrepresented the quality of construction of the building, its units, and its common areas. The Court holds only that plaintiff's GBL §§ 349 and 350 claims, as pleaded, [*7]withstand defendants' motion to dismiss.

Fraudulent Conveyance (Constructive Fraud under Debtor & Creditor Law)

As a predicate for its fraudulent conveyance claims, the complaint alleges that plaintiff has standing to seek relief under the Debtor and Creditor Law (DCL) because it and its unit owners are the Sponsor's creditors.^[FN7] In this regard, the complaint alleges that the Sponsor sold some of the units despite "receiving (a) notice from the Board of significant defects in the Building, and (b) demands by the Board to remedy the defective conditions including those caused by leaks."

For its fourteenth and fifteenth causes of action (constructive fraud under DCL), the complaint alleges that, upon information and belief: (a) the Sponsor was a special purpose entity formed and existing solely to serve as the condominium developer and [that it] conducted no other business; (b) the Sponsor, after paying off its lender, distributed the remaining sale proceeds of the units to the Sponsor's members in accordance with their equity interests; (c) the direct or indirect recipients of the Sponsor's equity distributions were the Non-Sponsors (i.e., Yuco, Raymond, Catherine, Patrick, Garo, Grigor, Milford and Moklam); (d) the equity distributions were conveyed without fair consideration and while the Sponsor was insolvent or was thereby rendered insolvent, or, in the alternative, that such distributions left the Sponsor with unreasonably small capital with which to continue its business or meet its payment obligations; and (e) as a result of the equity distributions, plaintiff and the unit owners suffered monetary damages.

DCL §§ 273 and 274 serve as the basis for the complaint's "constructive" fraudulent conveyance claims. DCL §§ 273 and 274 each require (a) lack of fair consideration, and (b) either insolvency (in the case of DCL § 273) or inadequate capital (in the case of DCL § 274). Neither statute requires a showing of actual motive or intent to defraud (see Zanani v Meisels, 78 AD3d 823, 824 [2d Dept 2010]), and therefore dispenses with the particularity of pleading under CPLR 3016 (b) (see Gateway I Group, Inc. v Park Ave. Physicians, P.C., 62 AD3d 141, 149 [2d Dept 2009]).

Defendants have submitted no affidavits asserting any defenses to these claims (for example, the antecedent debt defense). Moreover, defendants at this time are the only parties in possession of the documents evidencing these alleged fraudulent conveyances, as no discovery has been conducted to date. In the posture of this case, the dismissal of the constructive fraudulent conveyance claims against any of the defendants is premature (see Park Slope, 2013 WL 1849128, *14-15).

Fraudulent Conveyance (Actual Fraud under Debtor & Creditor Law)

Separately, plaintiff alleges in his sixteenth cause of action (in ¶ 229) that "[u]pon information and belief, some or all of the Equity Distributions were made by the Sponsor with actual intent to hinder, delay, and/or defraud creditors of the Sponsor, including Plaintiff (including the unit owners)." In support of this claim, plaintiff relies on DCL § 276, which requires proof that the transferor intentionally hindered, delayed, or defrauded present or future creditors (see Zanani v Meisels, 78 AD3d 823, 825 [2d Dept 2010]).

As one court cogently summarized the law in this area:

"The actual fraudulent intent required for a violation of DCL § 276 is rarely susceptible to direct proof, by its very nature, but may be inferred from the circumstances surrounding the allegedly fraudulent transfer. Factors from which fraudulent intent may be inferred include . . . [a] a close relationship between the parties to the transaction, [b] secrecy and haste in making the transfer, [c] inadequacy of consideration, and [d] the transferor's knowledge of the creditor's claim and the transferor's inability to pay it. . . . The burden of proof to establish fraud under DCL § 276 rests upon the creditor who seeks to have the conveyance set aside, and the standard for such proof is clear and convincing evidence." [*8]

(Cadle Co. v Highland Realty Assoc., 1998 WL 35421086 [Sup Ct, NY County 1998] [internal citations omitted]).

With respect to DCL § 276, the complaint fails to allege with the requisite specificity a cause of action upon which relief can be granted sounding in actual fraud. The complaint simply parrots the statutory language, without referencing any of the aforementioned "badges of fraud." The branch of defendants' motion for dismissal of plaintiff's actual fraud claim under DCL § 276 is granted, and such claim is dismissed against all defendants (see Zanani v Meisels, 78 AD3d 823, 825 [2d Dept 2010]).

Defendants' motion is granted only to the extent that (a) the breach of contract claim (first cause of action) against each of Yuco Management, Inc., Patrick K. Yu, and Moklam Enterprises, Inc. is dismissed on consent, (b) the common-law fraud claim (second cause of action) is dismissed against all defendants, (c) the negligent misrepresentation claim (third cause of action) is dismissed against all defendants, and (d) the fraudulent conveyance claim for actual fraud under DCL § 276 (sixteenth cause of action) is dismissed against all defendants. Plaintiff's remaining claims, as pleaded in its complaint, dated Oct. 12, 2012, remain unaffected.

Defense counsel is directed to serve a copy of this decision and order with notice of entry on plaintiff's counsel and to file an affidavit of service with the County Clerk.

Plaintiff's counsel is directed to file a copy of the complaint, dated Oct. 12, 2012, with the County Clerk within twenty days after service of a copy of this decision and order on it with notice of entry.

The caption is amended to reflect the correct name of the non-moving defendant Corcoran and the stipulated dismissal of the remaining non-moving defendants, as follows: -

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

The Board of Managers of

14 Hope Street Condominium,

Plaintiff,

- against -Index No. 15401/12

Hope Street Partners, LLC,

Yuco Management, Inc.,

Raymond H. Yu,

Catherine L. Yu,

Patrick K. Yu,

Garo Yegnukian,

Grigor Yegnukian,

Milford Partners, LLC,

Moklam Enterprises, Inc., and

NRT New York, LLC, d/b/a The Corcoran Group,

Defendants. -

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

This constitutes the decision and order of the Court.

E N T E R, [*9]

J. S. C.