IN DIVORCE, NON-DISCLOSURE IS NOT PER SE FRAUD

 

Wong v. Wong, 2022 NY Slip Op 33823 - NY: Supreme Court 2022:

"In order to state a claim for fraud in the inducement, a plaintiff must allege misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the plaintiff to rely on it, and justifiable reliance by plaintiff, resulting in damages (see Ambac Assur. Corp. v Countrywide Home Loans, Inc., 31 NY3d 569, 570-571 [2018]). Furthermore, the circumstances constituting the alleged wrong must be stated in detail (see CPLR 3016[b]; Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491 [2008]). This requirement "may be met when the facts are sufficient to permit a reasonable inference of the alleged conduct" (Pludeman v Northern Leasing Sys., supra, at 492). A divorce settlement tainted by fraud is void ab initio (Angeloff v Angeloff, 56 NY2d 982, 984 [1982]).

Here, plaintiff alleges that defendant's representations of his assets, as set forth in his Net Worth Statements, were "false and untrue" and were made by defendant in order to induce plaintiff to enter into the Settlement and accept less equitable distribution, spousal maintenance, and counsel fees than she would have otherwise sought had she known defendant's true assets (Complaint, supra.) In particular, plaintiff claims that defendant failed to disclose eight stock accounts, four bank accounts, and ten real estate properties that he owned in Taiwan prior to the parties' marriage (see Complaint, supra; see also Affidavit of Victoria Wong, NYSCEF Doc. No. 45). Plaintiff further claims that defendant secreted these assets to induce her to enter into the Settlement and accept less of a distribution, spousal maintenance, and counsel fees than she is entitled to based on the value of defendant's true assets (see Complaint, supra.)

Plaintiff has since acknowledged that defendant included at least one of the stock accounts in his Net Worth Statements (see Affidavit of Victoria Wong, supra.) She has also acknowledged that the real estate properties were owned by defendant prior to the marriage, (id..) Nevertheless, she insists that defendant was obligated to list them on his Net Worth Statements (id..)

The documentary evidence relied upon by defendant to support his motion to dismiss is largely his Net Worth Statements and the Settlement. Defendant references the provisions of his Net Worth Statements that list most of the stock accounts and bank accounts (see Net Worth Statements, NYSCEF Doc. Nos. 46-49; Affidavit of Ricky Wong, NYSCEF Doc. No. 79). Defendant also asserts that his parents used their own funds to open one of the stock accounts in his name, without his knowledge, and that he was not aware of the account when he submitted his Net Worth Statements (see Affidavit of Ricky Wong, supra.) Defendant offers the affidavit of his sister to corroborate this assertion (see Affidavit of Shao-Fan Yuan Wong, NYSCEF Doc. No. 81). Defendant further states that plaintiff agreed, in both the Settlement and the Taiwan action, that the ten real estate properties were his separate property (see Affidavit of Rick Wong, supra.)

Even construed in the most favorable light, the pleadings fail to allege facts to establish that plaintiff was induced to enter into the Settlement based on fraud perpetrated by defendant. "[N]ondisclosure is not the equivalent of fraud" (Dayton v Dayton, 175 AD2d 427, 428 [3d Dept 1991]). "[A] husband's failure or refusal to disclose his financial circumstances when the agreement is executed is not sufficient to void an agreement fair on its face" (id..)

In any event, a review of defendant's October 23, 2008 Net Worth Statement reveals many of the accounts that plaintiff claims were not disclosed (see NYSCEF Doc. No. 46). Furthermore, as to defendant's separate real estate properties in Taiwan, the Settlement expressly states that "[w]ife's separate property shall forever remain hers and Husband's separate property shall forever remain his, notwithstanding ... the discovery of assets that either party failed to disclose in these proceedings, including `many assets' that husband previously acknowledged" (Settlement, supra, Art. VIII, ¶2). Thus, the claim for fraud in the inducement is dismissed.

The claim for breach of fiduciary duty must also be dismissed. The pleadings in a cause of action for breach of fiduciary must allege facts to establish the existence of a fiduciary relationship and misconduct by defendant, resulting in damages (see Burry v Madison Park Owner LLC, 84 AD3d 699, 699-700 [1st Dept 2011]). Here, plaintiff essentially claims that defendant breached his fiduciary duty to her by falsely and fraudulently misrepresenting his assets in his Net Worth Statements.

It is the general policy of New York courts to encourage litigants to resolve their actions through privately contracted agreements rather than judicial intervention (see McCaughey v McCaughey, 205 AD2d 330, 331 [1st Dept 1994]). Nevertheless, there is strict surveillance of all transactions between married persons, especially separation agreements (see Christian v Christian, supra, at 72). Separation agreements entered between husband and wife are subject to heightened judicial scrutiny and are more readily set aside due to the fiduciary relationship that exists between spouses requiring the utmost good faith upon execution (id..) Despite the heightened scrutiny, however, it remains that absent a showing of fraud or overreaching, courts will generally not modify or set aside the terms of a separation agreement entered between spouses (see Matter of Galasso, 35 NY2d 319, 321 [1974]). In determining whether a separation agreement is invalid, courts may look at the terms of the agreement to see if there is an inference of overreaching in its execution (see Christian v Christian, supra, at 72). If the execution of the agreement is fair, no other inquiry will be made (id.).

As stated, nondisclosure of financial circumstances in matrimonial actions is not the equivalent of fraud (see Dayton v Dayton, supra.) Furthermore. a review of the submissions relating to the matrimonial action reveals nothing from which one can infer overreaching by defendant in the execution of the Settlement, and plaintiff does not allege any facts to support an inference of overreaching. In addition, plaintiff was represented by counsel during most of the negotiations of the Settlement and received the entire amount contemplated by the agreement. Thus, the cause of action for breach of fiduciary duty is also dismissed."

PROVING FRAUD FOR AN ANNULMENT

Travis A. v. Vilma B., Date filed: 2021-09-16, Court: Appellate Division, Third Department, Case Number: 531115:

"MEMORANDUM AND ORDER Appeal from a judgment of the Supreme Court (Campbell, J.), entered January 31, 2020 in Cortland County, granting plaintiff an annulment of the parties’ marriage, upon a decision of the court CHRISTINE CLARK, JUSTICE PRESIDING

Plaintiff (hereinafter the husband), a United States citizen, and defendant (hereinafter the wife), a citizen of the Philippines, met online in February 2018 and got engaged in June 2018, during the first of the husband’s two trips to the Philippines. In April 2019, the wife entered the United States on a K-1 (fiancée) visa and moved in with the husband. Several weeks later, on June 8, 2019, the parties were married. However, the marriage rapidly deteriorated, with the wife moving out of the marital home less than two weeks after the wedding. In July 2019, the husband commenced this action seeking an annulment based upon the wife’s alleged fraud in the inducement. Specifically, the husband alleged that the wife married him “with the sole purpose of becoming a U.S. [c]itizen.” The wife joined issue, denying the husband’s allegation of fraud in the inducement and asserting that the husband had perpetrated acts of domestic violence against her and that she “removed herself from the marital premises for her own safety.” Following a nonjury trial, Supreme Court issued a decision finding that the wife had fraudulently induced the husband to marry her to obtain citizenship and that the husband was therefore entitled to an annulment. By judgment of annulment entered in January 2020, which incorporated Supreme Court’s decision, the parties’ marriage was annulled. The wife appeals.1

Where the consent of either spouse to a marriage was obtained by fraud, the marriage is voidable by way of an annulment action (see Domestic Relations Law §§7 [4]; 140 [e]; Kober v. Kober, 16 NY2d 191, 196 [1965]). To obtain an annulment, the plaintiff spouse must prove that the defendant spouse knowingly made a material false representation to the plaintiff spouse with the intent of inducing the plaintiff spouse’s consent to marriage, that the misrepresentation was of such a nature as to deceive an ordinarily prudent person, that the plaintiff spouse justifiably relied on the misrepresentation in consenting to marriage and that, once aware of the false representation, cohabitation ceased (see Domestic Relations Law §140 [e]; Shonfeld v. Shonfeld, 260 NY 477, 479-480 [1933]; Brazil v. Brazil, 235 AD2d 611, 613 [1997]; Avnery v. Avnery, 50 AD2d 806, 806 [1975], appeal dismissed 38 NY2d 997 [1976]). Generally, “[p]remarital falsehoods as to love and affection are not enough” to warrant an annulment based upon fraud (WoronzoffDaschkoff v. Woronzoff-Daschkoff, 303 NY 506, 512 [1952]; accord Avnery v. Avnery, 50 AD2d at 807). However, proof that a defendant spouse induced the plaintiff spouse to marry with the sole objective of obtaining an immigration or citizenship benefit may, in certain cases, constitute grounds for an annulment (see Brillis v. Brillis, 4 NY2d 125, 127 [1958]; Avnery v. Avnery, 50 AD2d at 808; Miodownik v. Miodownik, 259 App Div 851, 851 [1940]; Bracksmayer v. Bracksmayer, 22 NYS2d 110, 111 [Sup Ct, NY County 1940]; compare Novick v. Novick, 17 Misc 2d 350, 351 [Sup Ct, NY County 1959]). An annulment may not be granted solely upon “the declaration or confession of either party”; rather, the plaintiff spouse must produce “satisfactory evidence of the facts” (Domestic Relations Law §144 [2]), that is, evidence consisting of “other material from other sources, substantial and reliable enough to satisfy the conscience of the trier of the facts” (de Baillet-Latour v. de Baillet-Latour, 301 NY 428, 431 [1950]; accord Fishman v. Fishman, 48 AD2d 876, 877 [1975]). Where the plaintiff spouse seeks an annulment based upon fraud in the inducement, such fraud must be proven by clear and convincing evidence (see Vanderhorst v. Vanderhorst, 282 App Div 312, 314 [1953]; Peterson v. Peterson, 255 App Div 537, 538 [1938]; see also Shonfeld v. Shonfeld, 260 NY at 489 [Crane, J., dissenting]).

The husband’s case of fraud in the inducement was premised upon his claim that the wife induced him to marry through false representations of love and affection for the sole purpose of obtaining an immigration benefit. The husband, however, failed to prove that claim at trial, as his proof fell far short of demonstrating a fraudulent premarital intent on the part of the wife. The husband’s proof primarily consisted of testimony establishing premarital and marital discord between the parties. Although the husband sought to attribute that discord to a fraudulent premarital intent, he ultimately failed to demonstrate “that the marital break was due to any cause other than the general discontent and incompatibility of the parties” (Schacht v. Schacht, 24 AD2d 614, 614 [1965]). Indeed, the husband’s own proof demonstrated that, during their marital spats, the wife indicated her desire to leave the marriage and return to her family and friends in the Philippines. The fact that she remained in the United States after the parties ceased cohabitating is insufficient to demonstrate that, prior to the marriage, the wife had the intent to induce the husband to marry with the sole objective of obtaining an immigration benefit. In determining otherwise, Supreme Court erred by not holding the husband to his burden of proof, relying too heavily upon the wife’s belated filing of a family offense petition in another county and taking a negative inference against the wife for purportedly exploring relief under the Violence Against Women Act. Accordingly, Supreme Court erred2 in granting the husband an annulment based upon fraud in the inducement (see Schacht v. Schacht, 24 AD2d at 614; compare Brillis v. Brillis, 4 NY2d at 127).

Footnotes

1. Although the notice of appeal states that the appeal is being taken from Supreme Court's decision, a nonappealable paper, we exercise our discretion and deem the appeal as having been taken from the judgment of annulment (see CPLR 5512 [a]; Orser v. Wholesale Fuel Distribs. CT, LLC, 173 AD3d 1519, 1520 n 2 [2019], lv denied 34 NY3d 909 [2020]). We take judicial notice of the judgment of annulment, which was omitted from the record on appeal, but provided to this Court during the course of the parties' appellate motion practice (see Matter of Doreen J., 193 AD3d 1250, 1251 n 1 [2021]).

2. Although not germane to our final analysis, the wife correctly asserts that Supreme Court improperly excluded certain photographs from evidence. Contrary to Supreme Court's assertions, the wife laid a proper foundation for admission of the photographs and, thus, they should have been admitted (see People v. Price, 29 NY3d 472, 477 [2017]; People v. Byrnes, 33 NY2d 343, 347 [1974]). Once admitted, Supreme Court could determine what weight, if any, to give the photographs (see Matter of Colby II. [Sheba II.], 145 AD3d 1271, 1273 [2016]; People v. Agudelo, 96 AD3d 611, 611 [2012], lv denied 20 NY3d 1095 [2013])."

EMPLOYMENT DISCRIMINATION: SEVERANCE RELEASE FRAUDULENTLY INDUCED

Evans v. Bloomberg LP, NYLJ August 13, 2020, Date filed: 2020-07-31, Court: Supreme Court, New York, Judge: Justice Lucy Billings, Case Number: 160707/2019 (emphasis supplied)

"I. INTRODUCTION

 In this action for discrimination based on age, disability, and gender and for retaliation, defendants move to dismiss the amended complaint based on documentary evidence: a release that plaintiff signed November 28, 2016, barring her discrimination and retaliation claims. C.P.L.R. §3211(a)(1) and (5). Defendants also seek a declaratory judgment that the release is valid and enforceable. C.P.L.R. §3001. The court grants defendants’ motion to dismiss plaintiff’s claims that the release is void and declares that it is not void due to her incapacity, duress, the release’s ambiguity, its lack of consideration, and its violation of statutory requirements, without opposition. C.P.L.R. §§3001, 3211(a)(1) and (5); N.Y. Gen. Oblig. Law §15303; Allen v. Riese Org., Inc., 106 A.D.3d 514, 515 (1st Dep’t 2013); Serbin v. Rodman Principal Invs., LLC, 87 A.D.3d 870, 870 (1st Dep’t 2011). The court denies defendants’ motion to dismiss plaintiff’s claim that the release is void because it was fraudulently induced, however, as explained below. If it is void, then of course it does not bar her discrimination and retaliation claims. GoSmile, Inc. v. Levine, 81 A.D.3d 77, 82 (1st Dep’t 2010); Federal Ins. Co. v. Kozlowski, 18 A.D.3d 33, 39 (1st Dep’t 2005). Plaintiff timely filed the amended complaint before defendants served any answer to her original complaint. C.P.L.R. §3025(a). Although plaintiff’s amended complaint repeatedly refers to “other similarly situated members of her protected class,” Aff. of Elise M. Bloom Ex. 1 (Am. V. Compl.), plaintiff has clarified that her amended complaint does not allege a class action. Therefore defendants’ motion to dismiss plaintiff’s class action allegations is academic.

II. THE ALLEGED FRAUDULENT INDUCEMENT

To void the release due to its fraudulent inducement, plaintiff must show that defendants misrepresented or concealed a material fact, knowing the misstatement or omission was false, to induce plaintiff to rely on it, and that plaintiff justifiably relied on the misrepresentation or omission and incurred damages from that reliance. Centro Empresarial Cempresa S.A. v. América Móvil, S.A.B. de C.V., 17 N.Y.3d 269, 276 (2011); Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 178 (2011); Laduzinski v. Alvarez & Marsal Taxand LLC, 132 A.D.3d 164, 167 (1st Dep’t 2015); Perrotti v. Becker, Glynn, Melamed & Muffy LLP, 82 A.D.3d 495, 498 (1st Dep’t 2011). Plaintiff alleges that she signed the agreement releasing her claims against defendants, her former employer and former supervisor, based on their misrepresentation that her position was eliminated as part of a reduction in force. An attachment to the release identifies six other employees in her media department whose employment was terminated simultaneously with hers as part of a reduction in force. Bloom Aff. Ex. 1 (Am. V. Compl.)  Defendants insist that this document refutes plaintiff’s claim of fraudulent inducement, but the attachment only supports her claim that defendants gave her a reason for her termination, a reduction in force, that was false. Plaintiff claims that in 2019 she learned that she and those six other employees, all over age 40, were replaced by younger employees. Id.

Defendants’ further documentary evidence, plaintiff’s email November 21, 2016, to a colleague at Bloomberg L.P., acknowledging that plaintiff’s “division in the media group was dismantled,” also supports her reliance on defendants’ representation in her agreeing to the release. Aff. of Darron Smith Ex. A.

Defendants then inconsistently suggest that plaintiff’s reliance on their own representations of a reduction in force was unjustified. Pointing to the amended complaint’s allegations that plaintiff was a sophisticated, experienced employee in the media industry who produced significant revenue and managed business relationships critical to her employer’s success, defendants criticize her for not giving more studied consideration to the terms of her severance and verifying defendants’ representations. Again, viewing the evidence most favorably to plaintiff, this need for verification only supports her claim that defendants’ offered reason for her termination was questionable. JF Capital Advisors, LLC v. Lightstone Group, LLC, 25 N.Y.3d 759, 764 (2015); Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 351 (2013); ABN AMRO Bank, N.V. v. MBIA Inc., 17 N.Y.3d 208, 227 (2011); Drug Policy Alliance v. New York City Tax Comm’n, 131 A.D.3d 815, 816 (1st Dep’t 2015).

Plaintiff’s allegations regarding defendants’ conduct, in hindsight, reveal cause to question defendants’ representations. On November 20, 2016, after plaintiff had been hospitalized for a nervous breakdown, Bloomberg L.P.’s Human Resources representative Alyson Zeitz telephoned plaintiff and inquired whether she would need leave for a mental disability. When plaintiff responded that she intended to return to work as soon as possible, Zeitz informed plaintiff that her division within her department was being eliminated. Bloom Aff. Ex. 1 (Am. V. Compl.)  If that fact were true, Zeitz had no reason to inquire whether plaintiff intended to take leave for a disability. In sum, plaintiff’s allegations that defendants falsely represented that her position was eliminated as part of a reduction in force, on which plaintiff relied in agreeing to the release, when in fact she was replaced by a younger employee, and her position and division were not eliminated, demonstrate fraudulent inducement that damaged her. American Media, Inc. v. Bainbridge & Knight Labs., LLC, 135 A.D.3d 477, 477-78 (1st Dep’t 2016); Laduzinski v. Alvarez & Marsal Taxand LLC, 132 A.D.3d at 168-69.
Plaintiff also alleges that defendants concealed their severance policies and that Zeitz misrepresented to plaintiff that payment of her accrued salary, bonus, and severance pay was contingent on her signing the release, when in fact the payment was due her regardless of her signing the release. Bloom Aff. Ex. 1 (Am. V. Compl.)

These allegations that defendants concealed their severance policies and falsely represented that she would receive the payments due her only if she signed the release, on which she also relied in agreeing to it, when in fact she was owed the payment under defendants’ policies without signing the release, likewise demonstrate fraudulent inducement that damaged her. Id.


While the release acknowledges that plaintiff has agreed to it knowingly and voluntarily, if fraudulent inducement voids the release, then this provision is void along with the release as a whole. Any knowing agreement by plaintiff is based on her knowledge upon entering the agreement. Johnson v. Lebanese Am. Univ., 84 A.D.3d 427, 430 (1st Dep’t 2011). Defendants offer no reason why plaintiff would have known that the information defendant gave her, on which her knowledge was based, was false. Of course that information regarding the reduction in force may have been entirely true, but the complaint alleges to the contrary, which at this stage the court must accept as true. JF Capital Advisors, LLC v. Lightstone Group, LLC, 25 N.Y.3d at 764; Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d at 351; ABN AMRO Bank, N.V. v. MBIA Inc., 17 N.Y.3d at 227; Drug Policy Alliance v. New York City Tax Comm’n, 131 A.D.3d at 816."

AN ORAL DOMESTIC PARTNER AGREEMENT WAS ENFORCEABLE

Breaking up is hard to do.

Sheinker v Quick, 2020 NY Slip Op 20049, Decided on February 6, 2020, Appellate Term, Second Department:

"In this action, plaintiff seeks to recover the principal sum of $15,000, based on causes of action for breach of contract and fraudulent concealment or fraudulent inducement. In the complaint, plaintiff asserted that she had resided in New York with her two children and with defendant, in a domestic relationship, for several years when, in April 2015, defendant had received an offer of employment in Florida. Plaintiff alleged that, since defendant lacked the financial means to relocate to Florida, the parties had made an oral contract (the Agreement), pursuant to which plaintiff had agreed to pay defendant's expenses to relocate from New York to Florida and the majority of his living expenses for a year, in consideration of defendant's payment to plaintiff of 80% of his net earnings for the same period. Pursuant to the Agreement, plaintiff paid defendant's moving expenses, which she estimated at approximately $15,000, rented and furnished an apartment in Florida, and obtained utility contracts and renter's insurance for the Florida apartment in her name, among other expenses. Plaintiff and her children continued to reside in New York. Defendant went to work in Florida, following which plaintiff began receiving payments in furtherance of the Agreement, initially, by ATM withdrawals that she made from defendant's bank account, and, after several weeks, by wire transfers that defendant made into plaintiff's bank account.

Plaintiff stated that, on June 27, 2015, she became aware that defendant had breached the Agreement by concealing a portion of his earnings from her and paying her less than the amount [*2]to which she was entitled. Subsequently, she learned that defendant had also concealed from her his romantic involvement with a woman in Florida, to whom he had become engaged before he had entered into the Agreement, as well as a prior criminal conviction and a civil judgment that had been rendered against defendant based on fraud. Plaintiff indicated that, had she been aware of defendant's romantic involvement with another woman or his prior financial malfeasance, she would not have entered into the Agreement with defendant.

Defendant denied liability, and, following discovery, moved for summary judgment dismissing the complaint, asserting, first, that since plaintiff admitted to having received payments from defendant that exceeded the $15,000 she seeks to recover in this action, she had no viable claim for relief, and second, that plaintiff's cause of action for fraudulent inducement was barred because it was essentially duplicative of her cause of action for breach of contract.

In opposition, plaintiff stated that, although she had only demanded $15,000, because it is the jurisdictional limit for actions brought in the District Court, defendant's payments to her had not covered the full amount due, and his outstanding contractual debt to her exceeded that sum. With respect to her cause of action for fraudulent inducement, plaintiff indicated that she had entered into the Agreement based on the parties' history of living together in a familial relationship, and with the understanding that if defendant's job worked out in Florida, she and her children would join defendant and make Florida their primary residence. She stated that she had relied on the parties' confidential relationship when she had entered into the Agreement, and that, if defendant had not concealed his relationship with and engagement to the woman in Florida as well as his past record of financial malfeasance, she would not have entered into the Agreement. By order dated August 2, 2018, the District Court granted defendant's motion and dismissed the action, upon a sua sponte finding that plaintiff was, in effect, seeking "palimony," which is not recognized in New York.
While New York will not imply a contract pertaining to earnings and assets from the relationship of an unmarried couple living together, sometimes denominated "palimony," the express contract of such a couple is enforceable (see Morone v Morone, 50 NY2d 481, 484 [1980]; see also Dee v Rakower, 112 AD3d 204, 210-211 [2013]). Here, plaintiff pleaded the elements of a cause of action for breach of contract, including its existence, her performance under the contract, defendant's breach of his contractual obligations, and plaintiff's resulting damages (see 143 Bergen St., LLC v Ruderman, 144 AD3d 1002, 1003 [2016]). Consequently, the District Court erred in, sua sponte, dismissing the action on the ground that it constituted an unenforceable action for "palimony."

A plaintiff may, if she so chooses, seek a recovery in a court with a lower jurisdictional limit than the amount of her damages, provided that the plaintiff confines her demand to the court's jurisdictional limit (see Wallach v Flood, 54 Misc 3d 127[A], 2016 NY Slip Op 51789[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Here, plaintiff alleged contract damages substantially in excess of the sum which defendant had paid her. The fact that she had confined her demand to the jurisdictional limit of the District Court did not provide a valid basis for the dismissal of the action.

By alleging in the complaint that the parties were in a confidential relationship at the time they entered into the Agreement (see Sharp v Kosmalski, 40 NY2d 119, 121 [1976]; Mei Yun Chen v Mei Wan Kao, 97 AD3d 730 [2012]), from which it could be inferred that defendant had [*3]a duty to disclose any material information (cf. Sanford/Kissena Owners Corp. v Daral Props., LLC, 84 AD3d 1210, 1211 [2011]; Manti's Transp., Inc. v C.T. Lines, Inc., 68 AD3d 937, 940 [2009]), and that defendant had concealed facts from her—to wit, his engagement to another woman and his prior history of financial fraud—which were collateral to the Agreement but the concealment of which served as an inducement for plaintiff to enter into the Agreement, plaintiff pleaded a cause of action for fraudulent inducement which was not duplicative of her cause of action for breach of contract (see Greenberg v Meyreles, 155 AD3d 1001, 1003 [2017]). Since, in his motion, defendant failed to provide evidentiary materials to eliminate any material issues of fact from the case (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]) or otherwise to establish his entitlement to judgment as a matter of law, his motion should have been denied."