On May 28, 2025, the Second Department issued a decision in Lapin v. Verner, 2025 NY Slip Op. 03184, holding that a fraud claim based on omissions failed for insufficiently alleging materiality or a duty to disclose, explaining:
The required elements of a common-law fraud claim are 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. When a plaintiff brings a cause of action based upon fraud, ‘the circumstances constituting the wrong shall be stated in detail. Moreover, a plaintiff is expected to exercise ordinary diligence and may not claim to have reasonably relied on a defendant’s representations or silence where he or she has means available to him or her of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation.
Here, affording the allegations in the complaint, as supplemented by the plaintiff’s affidavit, their most favorable intendment, the plaintiff failed to state a cause of action for fraud. The allegations of fraudulent misrepresentations amount to no more than vague expressions of hope and future expectation or mere opinion and puffery, and are nonactionable. Moreover, no facts have been alleged which might give rise to a reasonable inference that Loeb knew the misrepresentations were false or misleading at the time they were made, or that the plaintiff exercised ordinary diligence to ascertain the truth or quality of the investment information. In addition, no facts have been alleged which might give rise to a reasonable inference that the defendants had knowledge of the misrepresentations or otherwise participated in the alleged fraud.
Further, the allegations of material omissions of fact similarly fail to support a cause of action for fraud. No facts have been alleged which might give rise to a reasonable inference that the alleged omissions were material or that the defendants otherwise had a duty to disclose the alleged omissions to the plaintiff, or that the plaintiff justifiably relied on the alleged omissions.
(Internal quotations and citations omitted).