SHELBY SULLIVAN, plf-ap, v. MERS, INC., ETC. def-res, 468 WEST 146 CORP., a/k/a 468 WEST 146 STREET CORP. def

1038. SHELBY SULLIVAN, plf-ap, v. MERS, INC., ETC. def-res, 468 WEST 146 CORP., a/k/a 468 WEST 146 STREET CORP. def — Law Offices of Vincent S. Wong, New York (Vincent S. Wong of counsel), for ap — Bryan Cave LLP, New York (Suzanne M. Berger of counsel), for MERS, Inc., res — Miller, Rosado & Algios, LLP, Garden City (Neil A. Miller of counsel), for Baron Associates, LLC, res — Order, Supreme Court, New York County (Barbara Jaffe, J.), entered January 15, 2015, which, insofar as appealed from as limited by the briefs, granted the cross motions of defendant Baron Associates LLC (Baron) and defendant MERS, Inc. (MERS) to dismiss the claims for fraud, conspiracy to commit fraud, unjust enrichment, prima facie tort, breach of fiduciary duty, and negligent underwriting as asserted against them, unanimously affirmed, with costs.

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1038. SHELBY SULLIVAN, plf-ap, v. MERS, INC., ETC. def-res, 468 WEST 146 CORP., a/k/a 468 WEST 146 STREET CORP. def — Law Offices of Vincent S. Wong, New York (Vincent S. Wong of counsel), for ap — Bryan Cave LLP, New York (Suzanne M. Berger of counsel), for MERS, Inc., res — Miller, Rosado & Algios, LLP, Garden City (Neil A. Miller of counsel), for Baron Associates, LLC, res — Order, Supreme Court, New York County (Barbara Jaffe, J.), entered January 15, 2015, which, insofar as appealed from as limited by the briefs, granted the cross motions of defendant Baron Associates LLC (Baron) and defendant MERS, Inc. (MERS) to dismiss the claims for fraud, conspiracy to commit fraud, unjust enrichment, prima facie tort, breach of fiduciary duty, and negligent underwriting as asserted against them, unanimously affirmed, with costs.

The court properly dismissed the fraud claims against Baron and MERS, as plaintiff has not alleged that they made any material misrepresentations upon which he relied (see Lama Holding Co. v. Smith Barney, 88 NY2d 413, 421 [1996]). Plaintiff has also failed to state a viable claim for conspiracy to commit fraud, since his allegations that they acted as part of a common scheme or plan to defraud him of his interest in the subject property are conclusory (see Agostini v. Sobol, 304 AD2d 395 [1st Dept 2003]). While he has alleged facts showing that other defendants had engaged in a fraudulent scheme, the allegations with respect to Baron and MERS were only that they issued mortgages to those defendants, and that they sought to foreclose on the property after those purchasers defaulted on the loans.

SHELBY SULLIVAN, plf-ap, v. MERS, INC., ETC. def-res, 468 WEST 146 CORP., a/k/a 468 WEST 146 STREET CORP. def

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