Supreme Court, Appellate Division, Second Department, New York.
Paul GOETTLER, Respondent,
v.
Rodney PETERS, etc., et al., Defendants,
Reynolds C. Graves, et al., Appellants.
March 18, 1996.
 Purchaser brought action against, inter alia, vendor's attorney and his law 
firm and against title insurer, asserting contract and tort claims in connection 
with vendor's action to rescind sale.   The Supreme Court, Suffolk County, Lama, 
J., denied defendants' motions to dismiss and/or for summary judgment, and they 
appealed.   The Supreme Court, Appellate Division, held that:  (1) title insurer 
did not breach its contractual duties even though it did not issue actual title 
policy until after purchaser commenced instant action;  (2) title insurer and 
its agents were not liable under negligence theory;  (3) purchaser stated claim 
against attorney and law firm for malicious prosecution, but claim was time 
barred;  (4) purchaser did not state claim against attorney and his firm for 
prima facie tort or breach of fiduciary duty;  but (5) purchaser's allegations 
were sufficient to state claim against attorney and firm for fraud under 
conspiracy theory.
 Affirmed as modified.
West Headnotes
[1] Insurance  2610
217k2610 Most Cited Cases
(Formerly 217k426.1)
Title insurance commitment, which is issued at time of closing, constitutes 
policy or contract of indemnity by title insurer, and issuance of clean policy 
merely confirms obligations already undertaken by title company.  McKinney's 
Insurance Law § §  1113(a)(18), 6401(b).
[2] Insurance  2610
217k2610 Most Cited Cases
(Formerly 217k507.1, 217k426.1)
Title insurer did not breach its contractual duties even though actual title 
policy was not issued until after purchaser brought suit;  through its agents, 
insurer issued commitment insuring purchaser's title, and defended purchaser in 
rescission action pursuant to terms of that commitment.
[3] Insurance  1654
217k1654 Most Cited Cases
(Formerly 217k92.1)
Title insurer and its agents were not liable under negligence theory for losses 
allegedly sustained by purchaser when suit was brought on behalf of vendor to 
rescind purchase agreement;  there was no evidence that purchaser's injury was 
caused by actions of insurer, which defended purchaser in rescission action, or 
its agents.
[4] Malicious Prosecution  47
249k47 Most Cited Cases
Purchaser stated claim against vendor's attorney and his firm for malicious 
prosecution based on representation of vendor in action to rescind sale.
[5] Attorney and Client  26
45k26 Most Cited Cases
Purchaser did not state claim for prima facie tort against vendor's attorney and 
his firm absent any allegation that sole motivation in bringing action to 
rescind sale was to injure and damage purchaser.
[6] Attorney and Client  26
45k26 Most Cited Cases
Purchaser did not state claim against vendor's attorney and his firm for breach 
of fiduciary duty in connection with action to rescind sale;  since deed was 
delivered at closing and subsequently recorded, there was no allegation of any 
damages sustained as result of alleged breach.
[7] Attorney and Client  26
45k26 Most Cited Cases
Purchaser stated claim against vendor's attorney and his firm for fraud under 
conspiracy theory in connection with vendor's action to rescind sale and 
purchaser's subsequent effort to recover on money judgment against vendor.
 **844 Kirschenbaum & Kirschenbaum, P.C., Garden City (Samuel Kirschenbaum and 
Ira Levine, of counsel), for appellants Barbara Barahal, Citation Abstract 
Corp., and Chicago Title Insurance Company.
 Rivkin, Radler & Kremer, Uniondale (Evan H. Krinick and Merril Schapiro 
Biscone, of counsel), for appellants Reynolds C. Graves, John Kelly and Graves, 
Gold & Darbee a/k/a Graves, Darbee & Medvin.
 Ellen Unger, New Hyde Park, for respondent.
 Before MILLER, J.P., and O'BRIEN, PIZZUTO and KRAUSMAN, JJ.
 *660 MEMORANDUM BY THE COURT.
 Motion by the respondent for reargument of appeals from two orders of the 
Supreme Court, Suffolk County, dated July 26, 1994, and December 28, 1994, 
respectively, which were determined by decision and order of this court dated 
December 18, 1995.
 Upon the papers filed in support of the motion and the papers filed in 
opposition thereto, it is
 ORDERED that the motion is granted, the unpublished decision and order of this 
court dated December 18, 1995, is recalled and vacated, and the following is 
substituted therefor:
 In an action, inter alia, to recover damages for fraud, (1) the defendants 
Reynolds C. Graves, John Kelly, and Graves, Gold & Darbee a/k/a Graves, Darbee & 
Medvin appeal from so much of an order of the Supreme Court, Suffolk County 
(Lama J.), dated July 26, 1994, as denied the branches of their motion which 
were to dismiss the second, third, fifth, eighth, and ninth causes of action of 
the complaint insofar as they are asserted against them, and the defendants 
Barbara Barahal, Citation Abstract Corp., and Chicago Title Insurance Company 
separately appeal, as limited by their brief, from so much of the same order as 
denied the branch of their motion which was for summary judgment dismissing the 
fourth cause of action insofar as it is asserted against them and granted the 
plaintiff's *661 cross motion for leave to serve an amended complaint, and (2) 
the defendants Reynolds C. Graves, John Kelly, and Graves, Gold & Darbee a/k/a 
Graves, Darbee & Medvin appeal, as limited by their brief, from so much of an 
order of the same court, dated December 28, 1994, as, upon reargument, adhered 
to the prior determination, and the defendants Barbara Barahal, Citation 
Abstract Corp., and Chicago Title Insurance Company separately appeal from so 
much of the same order as, (a) upon reargument, adhered to the prior 
determination **845 and (b) denied their motion for summary judgment to dismiss 
the tenth cause of action of the amended complaint.
 ORDERED that the appeals from the order dated July 26, 1994, are dismissed, as 
that order was superseded by the order dated December 28, 1994, made upon 
reargument;  and it is further,
 ORDERED that the order dated December 28, 1994, is modified by (1) deleting the 
provision thereof which, upon reargument, adhered to so much of the prior 
determination as denied those branches of the motion of the defendants Reynolds 
C. Graves, John Kelly, Graves, Gold and Darbee a/k/a Graves, Darbee & Medvin 
which were to dismiss the third, fifth, and eighth causes of action of the 
complaint and substituting therefor a provision granting those branches of the 
motion, and the provisions of the order dated July 26, 1994, which denied those 
branches of the motion are vacated, (2) deleting the provision thereof which, 
upon reargument, adhered to so much of the prior determination as denied that 
branch of the motion of the defendants Barbara Barahal, Citation Abstract Corp., 
and Chicago Title Insurance Company which was for summary judgment dismissing 
the fourth cause of action and substituting therefor a provision granting that 
branch of the motion, and the provision of the order dated July 26, 1994, which 
denied that branch of the motion is vacated, and (3) deleting the provision 
thereof which denied that branch of the motion of the defendants Barbara 
Barahal, Citation Abstract Corp., and Chicago Title Insurance Company which was 
for summary judgment dismissing the tenth cause of action of the amended 
complaint and substituting therefor a provision granting that branch of the 
motion;  as so modified, the order is affirmed insofar as appealed from; and it 
is further,
 ORDERED that the appellants, appearing separately and filing separate briefs, 
are awarded one bill of costs.
 The plaintiff alleged that the defendant Rodney Peters (hereinafter Peters) had 
conspired with his counsel Reynolds C. Graves (hereinafter Graves) of the law 
firm Graves, Gold & Darbee (hereinafter the law firm) in a scheme to deprive him 
*662 of the real property he had purchased from Peters.   The plaintiff alleges 
that he was given only a few hours notice of the closing and therefore he was 
unrepresented by his own counsel.   Graves refused to adjourn the closing until 
the plaintiff could obtain representation.   Moreover, Graves told the plaintiff 
that he would assist him at the closing.   Graves prepared a possession 
agreement between Peters and the plaintiff which provided that Peters would pay 
the plaintiff $100 for every day that he occupied the property after a certain 
date.
 Because the plaintiff was unprepared for the closing he did not have certified 
funds to pay off liens against the property or to pay the balance of the 
purchase price.   Therefore, he gave Graves personal checks which were to be 
replaced by certified funds several days later.   Although the liens were 
satisfied several days later, and certified funds for the balance of the 
purchase price were accepted by Graves and placed in his firm's escrow account, 
Graves, on Peters' behalf, commenced an action against the plaintiff to rescind 
the sale based upon breach of the sales contract, and recorded a notice of 
pendency of action.   During the ensuing litigation, Peters continued to occupy 
the plaintiff's property without complying with the terms of the possession 
agreement.   Approximately three years later, the court entered a judgment in 
favor of the plaintiff which, inter alia, provided for Peters' eviction from the 
property and payment of the rental value of the property for that three- year 
period.
 The defendant Barbara Barahal, an employee of Citation Abstract Corp., was the 
closer who prepared the title insurance commitment issued by Chicago Title 
Insurance Company (hereinafter Chicago Title).   Although Chicago Title did not 
issue a title policy until after the instant action was commenced, the company 
defended the plaintiff in the rescission action pursuant to the terms of the 
commitment.   Moreover, Chicago Title recorded the deed conveying title to the 
plaintiff, despite an initial delay in doing so because of representations made 
to it by Graves.
 While the rescission action was still pending, Graves filed a bankruptcy 
petition on **846 Peters' behalf, which, inter alia, delayed the resolution of 
the rescission action and prevented the plaintiff from obtaining discovery 
regarding Peters' personal and financial matters.   Although the bankruptcy 
action was later withdrawn, when the plaintiff sought information from the law 
firm regarding Peters, for purposes of executing the money judgment, the law 
firm refused to provide *663 the information claiming that it was privileged.   
The plaintiff commenced the instant action alleging causes of action, inter 
alia, sounding in fraud, conspiracy to defraud, malicious prosecution, prima 
facie tort, breach of contractual obligations, and negligence, and seeking 
damages including punitive damages.   Barahal, Citation Abstract, and Chicago 
Title moved for summary judgment dismissing the complaint insofar as asserted 
against them, and Graves and his law firm moved, pursuant to CPLR 3211, to 
dismiss the complaint insofar as asserted against them. The plaintiff cross-
moved for leave to amend the complaint to add a tenth cause of action.   The 
court granted the motions to the extent of dismissing the first cause of action 
which alleged fraud in the inducement as to the sales contract, on the ground 
that none of these defendants were involved in the negotiations for the sale.   
The court otherwise denied the motions.   The court granted the plaintiff's 
cross motion to amend the complaint.   Upon reargument, the court adhered to its 
prior determination.   It also denied the branch of the motion for reargument of 
Barahal, Citation Abstract, and Chicago Title, which was for summary judgment 
dismissing the tenth cause of action.
 [1][2][3] A title insurance commitment, which is issued at the time of the 
closing, constitutes a policy or contract of indemnity by the title insurer 
(see, L. Smirlock Realty Corp. v. Title Guar. Co., 52 N.Y.2d 179, 187-188, 437 
N.Y.S.2d 57, 418 N.E.2d 650;  Insurance Law §  1113[a][18]; Insurance Law §  
6401[b];  5A Warren's Weed, New York Real Property, Title Insurance, §  4.01 
[4th ed.] ).  The issuance of a clean policy merely confirms the obligations 
already undertaken by the title company.   Since Chicago Title, through its 
agents, issued a commitment insuring the plaintiff's title to the real property, 
and the company defended the plaintiff in the rescission action pursuant to the 
terms of the insurance commitment, it is irrelevant that the actual title policy 
was not issued until after the instant action was commenced.   Thus, Chicago 
Title did not breach its contractual duties and the fourth cause of action 
should have been dismissed.   Moreover, the plaintiff has failed to raise an 
issue of fact that his injury was caused by these defendants' actions, thus, the 
tenth cause of action for negligence against Chicago Title and its agents should 
have been dismissed.
 [4][5][6][7] While the plaintiff's third cause of action to recover damages for 
malicious prosecution against Graves and the law firm based upon their 
representation of Peters in the rescission action was sufficiently stated, that 
cause of action was barred under the one-year Statute of Limitations (see, CPLR 
215).   The plaintiff did not adequately plead the eighth cause of action to 
*664 recover damages for prima facie tort since there is no allegation that the 
defendants' sole motivation was to injure and damage the plaintiff (see, Curiano 
v. Suozzi, 63 N.Y.2d 113, 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324;  see also, 
Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 332, 464 
N.Y.S.2d 712, 451 N.E.2d 459). Moreover, since the deed was delivered at the 
closing, and it was subsequently recorded, the plaintiff failed to allege any 
damages to sustain the fifth cause of action sounding in breach of fiduciary 
duty.   Nevertheless, the plaintiff has stated sufficient allegations to 
maintain the second and ninth causes of action to recover damages for fraud, 
based upon a conspiracy theory (see, Kashi v. Gratsos, 2nd Cir., 790 F.2d 1050;  
see also, Chase Manhattan Bank, N.A. v. Perla, 65 A.D.2d 207, 211, 411 N.Y.S.2d 
66).
 The appellants' remaining contentions are without merit.
639 N.Y.S.2d 843, 225 A.D.2d 660
END OF DOCUMENT
Supreme Court, Appellate Division, Second Department, New York.
Paul GOETTLER, Respondent,v.Rodney PETERS, etc., et al., Defendants,Reynolds C. Graves, et al., Appellants.

March 18, 1996.

 Purchaser brought action against, inter alia, vendor's attorney and his law firm and against title insurer, asserting contract and tort claims in connection with vendor's action to rescind sale.   The Supreme Court, Suffolk County, Lama, J., denied defendants' motions to dismiss and/or for summary judgment, and they appealed.   The Supreme Court, Appellate Division, held that:  (1) title insurer did not breach its contractual duties even though it did not issue actual title policy until after purchaser commenced instant action;  (2) title insurer and its agents were not liable under negligence theory;  (3) purchaser stated claim against attorney and law firm for malicious prosecution, but claim was time barred;  (4) purchaser did not state claim against attorney and his firm for prima facie tort or breach of fiduciary duty;  but (5) purchaser's allegations were sufficient to state claim against attorney and firm for fraud under conspiracy theory.
 Affirmed as modified.

West Headnotes
[1] Insurance  2610217k2610 Most Cited Cases (Formerly 217k426.1)
Title insurance commitment, which is issued at time of closing, constitutes policy or contract of indemnity by title insurer, and issuance of clean policy merely confirms obligations already undertaken by title company.  McKinney's Insurance Law § §  1113(a)(18), 6401(b).
[2] Insurance  2610217k2610 Most Cited Cases (Formerly 217k507.1, 217k426.1)
Title insurer did not breach its contractual duties even though actual title policy was not issued until after purchaser brought suit;  through its agents, insurer issued commitment insuring purchaser's title, and defended purchaser in rescission action pursuant to terms of that commitment.
[3] Insurance  1654217k1654 Most Cited Cases (Formerly 217k92.1)
Title insurer and its agents were not liable under negligence theory for losses allegedly sustained by purchaser when suit was brought on behalf of vendor to rescind purchase agreement;  there was no evidence that purchaser's injury was caused by actions of insurer, which defended purchaser in rescission action, or its agents.
[4] Malicious Prosecution  47249k47 Most Cited Cases
Purchaser stated claim against vendor's attorney and his firm for malicious prosecution based on representation of vendor in action to rescind sale.
[5] Attorney and Client  2645k26 Most Cited Cases
Purchaser did not state claim for prima facie tort against vendor's attorney and his firm absent any allegation that sole motivation in bringing action to rescind sale was to injure and damage purchaser.
[6] Attorney and Client  2645k26 Most Cited Cases
Purchaser did not state claim against vendor's attorney and his firm for breach of fiduciary duty in connection with action to rescind sale;  since deed was delivered at closing and subsequently recorded, there was no allegation of any damages sustained as result of alleged breach.
[7] Attorney and Client  2645k26 Most Cited Cases
Purchaser stated claim against vendor's attorney and his firm for fraud under conspiracy theory in connection with vendor's action to rescind sale and purchaser's subsequent effort to recover on money judgment against vendor. **844 Kirschenbaum & Kirschenbaum, P.C., Garden City (Samuel Kirschenbaum and Ira Levine, of counsel), for appellants Barbara Barahal, Citation Abstract Corp., and Chicago Title Insurance Company.
 Rivkin, Radler & Kremer, Uniondale (Evan H. Krinick and Merril Schapiro Biscone, of counsel), for appellants Reynolds C. Graves, John Kelly and Graves, Gold & Darbee a/k/a Graves, Darbee & Medvin.
 Ellen Unger, New Hyde Park, for respondent.

 Before MILLER, J.P., and O'BRIEN, PIZZUTO and KRAUSMAN, JJ.


 *660 MEMORANDUM BY THE COURT.
 Motion by the respondent for reargument of appeals from two orders of the Supreme Court, Suffolk County, dated July 26, 1994, and December 28, 1994, respectively, which were determined by decision and order of this court dated December 18, 1995.
 Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
 ORDERED that the motion is granted, the unpublished decision and order of this court dated December 18, 1995, is recalled and vacated, and the following is substituted therefor:
 In an action, inter alia, to recover damages for fraud, (1) the defendants Reynolds C. Graves, John Kelly, and Graves, Gold & Darbee a/k/a Graves, Darbee & Medvin appeal from so much of an order of the Supreme Court, Suffolk County (Lama J.), dated July 26, 1994, as denied the branches of their motion which were to dismiss the second, third, fifth, eighth, and ninth causes of action of the complaint insofar as they are asserted against them, and the defendants Barbara Barahal, Citation Abstract Corp., and Chicago Title Insurance Company separately appeal, as limited by their brief, from so much of the same order as denied the branch of their motion which was for summary judgment dismissing the fourth cause of action insofar as it is asserted against them and granted the plaintiff's *661 cross motion for leave to serve an amended complaint, and (2) the defendants Reynolds C. Graves, John Kelly, and Graves, Gold & Darbee a/k/a Graves, Darbee & Medvin appeal, as limited by their brief, from so much of an order of the same court, dated December 28, 1994, as, upon reargument, adhered to the prior determination, and the defendants Barbara Barahal, Citation Abstract Corp., and Chicago Title Insurance Company separately appeal from so much of the same order as, (a) upon reargument, adhered to the prior determination **845 and (b) denied their motion for summary judgment to dismiss the tenth cause of action of the amended complaint.
 ORDERED that the appeals from the order dated July 26, 1994, are dismissed, as that order was superseded by the order dated December 28, 1994, made upon reargument;  and it is further,
 ORDERED that the order dated December 28, 1994, is modified by (1) deleting the provision thereof which, upon reargument, adhered to so much of the prior determination as denied those branches of the motion of the defendants Reynolds C. Graves, John Kelly, Graves, Gold and Darbee a/k/a Graves, Darbee & Medvin which were to dismiss the third, fifth, and eighth causes of action of the complaint and substituting therefor a provision granting those branches of the motion, and the provisions of the order dated July 26, 1994, which denied those branches of the motion are vacated, (2) deleting the provision thereof which, upon reargument, adhered to so much of the prior determination as denied that branch of the motion of the defendants Barbara Barahal, Citation Abstract Corp., and Chicago Title Insurance Company which was for summary judgment dismissing the fourth cause of action and substituting therefor a provision granting that branch of the motion, and the provision of the order dated July 26, 1994, which denied that branch of the motion is vacated, and (3) deleting the provision thereof which denied that branch of the motion of the defendants Barbara Barahal, Citation Abstract Corp., and Chicago Title Insurance Company which was for summary judgment dismissing the tenth cause of action of the amended complaint and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed insofar as appealed from; and it is further,
 ORDERED that the appellants, appearing separately and filing separate briefs, are awarded one bill of costs.
 The plaintiff alleged that the defendant Rodney Peters (hereinafter Peters) had conspired with his counsel Reynolds C. Graves (hereinafter Graves) of the law firm Graves, Gold & Darbee (hereinafter the law firm) in a scheme to deprive him *662 of the real property he had purchased from Peters.   The plaintiff alleges that he was given only a few hours notice of the closing and therefore he was unrepresented by his own counsel.   Graves refused to adjourn the closing until the plaintiff could obtain representation.   Moreover, Graves told the plaintiff that he would assist him at the closing.   Graves prepared a possession agreement between Peters and the plaintiff which provided that Peters would pay the plaintiff $100 for every day that he occupied the property after a certain date.
 Because the plaintiff was unprepared for the closing he did not have certified funds to pay off liens against the property or to pay the balance of the purchase price.   Therefore, he gave Graves personal checks which were to be replaced by certified funds several days later.   Although the liens were satisfied several days later, and certified funds for the balance of the purchase price were accepted by Graves and placed in his firm's escrow account, Graves, on Peters' behalf, commenced an action against the plaintiff to rescind the sale based upon breach of the sales contract, and recorded a notice of pendency of action.   During the ensuing litigation, Peters continued to occupy the plaintiff's property without complying with the terms of the possession agreement.   Approximately three years later, the court entered a judgment in favor of the plaintiff which, inter alia, provided for Peters' eviction from the property and payment of the rental value of the property for that three- year period.
 The defendant Barbara Barahal, an employee of Citation Abstract Corp., was the closer who prepared the title insurance commitment issued by Chicago Title Insurance Company (hereinafter Chicago Title).   Although Chicago Title did not issue a title policy until after the instant action was commenced, the company defended the plaintiff in the rescission action pursuant to the terms of the commitment.   Moreover, Chicago Title recorded the deed conveying title to the plaintiff, despite an initial delay in doing so because of representations made to it by Graves.
 While the rescission action was still pending, Graves filed a bankruptcy petition on **846 Peters' behalf, which, inter alia, delayed the resolution of the rescission action and prevented the plaintiff from obtaining discovery regarding Peters' personal and financial matters.   Although the bankruptcy action was later withdrawn, when the plaintiff sought information from the law firm regarding Peters, for purposes of executing the money judgment, the law firm refused to provide *663 the information claiming that it was privileged.   The plaintiff commenced the instant action alleging causes of action, inter alia, sounding in fraud, conspiracy to defraud, malicious prosecution, prima facie tort, breach of contractual obligations, and negligence, and seeking damages including punitive damages.   Barahal, Citation Abstract, and Chicago Title moved for summary judgment dismissing the complaint insofar as asserted against them, and Graves and his law firm moved, pursuant to CPLR 3211, to dismiss the complaint insofar as asserted against them. The plaintiff cross-moved for leave to amend the complaint to add a tenth cause of action.   The court granted the motions to the extent of dismissing the first cause of action which alleged fraud in the inducement as to the sales contract, on the ground that none of these defendants were involved in the negotiations for the sale.   The court otherwise denied the motions.   The court granted the plaintiff's cross motion to amend the complaint.   Upon reargument, the court adhered to its prior determination.   It also denied the branch of the motion for reargument of Barahal, Citation Abstract, and Chicago Title, which was for summary judgment dismissing the tenth cause of action.
 [1][2][3] A title insurance commitment, which is issued at the time of the closing, constitutes a policy or contract of indemnity by the title insurer (see, L. Smirlock Realty Corp. v. Title Guar. Co., 52 N.Y.2d 179, 187-188, 437 N.Y.S.2d 57, 418 N.E.2d 650;  Insurance Law §  1113[a][18]; Insurance Law §  6401[b];  5A Warren's Weed, New York Real Property, Title Insurance, §  4.01 [4th ed.] ).  The issuance of a clean policy merely confirms the obligations already undertaken by the title company.   Since Chicago Title, through its agents, issued a commitment insuring the plaintiff's title to the real property, and the company defended the plaintiff in the rescission action pursuant to the terms of the insurance commitment, it is irrelevant that the actual title policy was not issued until after the instant action was commenced.   Thus, Chicago Title did not breach its contractual duties and the fourth cause of action should have been dismissed.   Moreover, the plaintiff has failed to raise an issue of fact that his injury was caused by these defendants' actions, thus, the tenth cause of action for negligence against Chicago Title and its agents should have been dismissed.
 [4][5][6][7] While the plaintiff's third cause of action to recover damages for malicious prosecution against Graves and the law firm based upon their representation of Peters in the rescission action was sufficiently stated, that cause of action was barred under the one-year Statute of Limitations (see, CPLR 215).   The plaintiff did not adequately plead the eighth cause of action to *664 recover damages for prima facie tort since there is no allegation that the defendants' sole motivation was to injure and damage the plaintiff (see, Curiano v. Suozzi, 63 N.Y.2d 113, 117, 480 N.Y.S.2d 466, 469 N.E.2d 1324;  see also, Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 332, 464 N.Y.S.2d 712, 451 N.E.2d 459). Moreover, since the deed was delivered at the closing, and it was subsequently recorded, the plaintiff failed to allege any damages to sustain the fifth cause of action sounding in breach of fiduciary duty.   Nevertheless, the plaintiff has stated sufficient allegations to maintain the second and ninth causes of action to recover damages for fraud, based upon a conspiracy theory (see, Kashi v. Gratsos, 2nd Cir., 790 F.2d 1050;  see also, Chase Manhattan Bank, N.A. v. Perla, 65 A.D.2d 207, 211, 411 N.Y.S.2d 66).
 The appellants' remaining contentions are without merit.
639 N.Y.S.2d 843, 225 A.D.2d 660
END OF DOCUMENT