(b) Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. Where an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of section 3101 was not furnished prior to the submission of the affidavit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.

We also agree with the Supreme Court's determination to grant that branch of the third-party defendants' cross motion which was for summary judgment dismissing the third-party fraud cause of action, and to deny that branch of Champ Construction's motion which was for summary judgment on the issue of liability on that cause of action. A cause of action alleging fraud requires the plaintiff to plead: (1) a material misrepresentation of a fact, (2) knowledge of its falsity, (3) an intent to induce reliance, (4) justifiable reliance, and (5) damages (see Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559, 883 N.Y.S.2d 147, 910 N.E.2d 976;

[128 N.Y.S.3d 585]

Stein v. Doukas, 98 A.D.3d 1024, 1025, 951 N.Y.S.2d 173).

Champ Construction failed to show, prima facie, that the third-party defendants made a material misrepresentation of fact as to the procurement of insurance. Moreover, the certificate of insurance that was purportedly issued by the third-party defendants provided that it was "issued as a matter of information only and confer[red] no rights upon the certificate holder." Accordingly, as the Supreme Court found, it was "unreasonable to rely on [that certificate] for coverage in the face of th[at] disclaimer language" (Greater N.Y. Mut. Ins. Co. v. White Knight Restoration, 7 A.D.3d 292, 293, 776 N.Y.S.2d 257; see Benjamin Shapiro Realty Co. v. Kemper Natl. Ins. Cos., 303 A.D.2d 245, 246, 756 N.Y.S.2d 45). Therefore, the third-party defendants were entitled to summary judgment dismissing the third-party fraud cause of action (see Greene v. Rachlin, 154 A.D.3d 814, 817, 63 N.Y.S.3d 78; see also Greater N.Y. Mut. Ins. Co. v. White Knight Restoration, 7 A.D.3d at 293, 776 N.Y.S.2d 257).

The Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the fourth cause of action, which alleged fraud. To properly plead a cause of action to recover damages for fraud, the plaintiff must allege that (1) the defendants made a representation of fact which was false and which the defendants knew to be false, (2) the misrepresentation was made in order to induce the plaintiff's reliance, (3) there was justifiable reliance on the part of the plaintiff, and (4) the plaintiff was injured by the reliance (see Selechnik v. Law Off. of Howard R. Birnbach, 82 A.D.3d 1077, 920 N.Y.S.2d 128). The measure of damages in a fraud cause of action is “ ‘indemnity for the actual pecuniary

[941 N.Y.S.2d 650]

loss sustained as the direct result of the wrong,’ ” so that a plaintiff is compensated for what he or she actually lost and not for what he or she may have gained in the absence of the alleged fraud [94 A.D.3d 732] (Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421, 646 N.Y.S.2d 76, 668 N.E.2d 1370, quoting Reno v. Bull, 226 N.Y. 546, 553, 124 N.E. 144).

The plaintiff alleged that the defendants committed fraud by inducing him to leave his former employment with Beech–Nut by falsely representing that his title with the defendants would be that of a Vice President, rather than Vice President Designate, a trainee position, the actual title he received upon commencing employment with LSG. The defendants established their prima facie entitlement to judgment as a matter of law dismissing the fourth cause of action by showing that the plaintiff was given the “Designate” title only during his initial four months with LSG before being appointed to a “full” Vice President position upon VanDervoort's departure in April 1998. Moreover, the defendants demonstrated that the plaintiff made the same salary as a Vice President Designate that he had been offered by LSG as a “full” Vice President and, thus, was not damaged by the alleged fraud. In opposition, the plaintiff failed to raise a triable issue of fact (see e.g. Ferdico v. Zweig, 82 A.D.3d 1151, 1154, 919 N.Y.S.2d 521; Selechnik v. Law Off. of Howard R. Birnbach, 82 A.D.3d at 1077, 920 N.Y.S.2d 128).

"In an action to recover damages for fraud, the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by 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" (Lama Holding Co. v Smith Barney, 88 N.Y.2d 413, 421; see Garendean Realty Owner, LLC v Lang, 175 A.D.3d 653, 653). A claim alleging fraud must be pleaded with particularity (see CPLR 3016[b]).

Here, the Ovation defendants demonstrated their entitlement to judgment as a matter of law dismissing Concrete's cause of action alleging fraud or intentional misrepresentation insofar as asserted against Ovation. Based upon Villano's deposition testimony that he believed the statements made by a Scottish American employee that Concrete had been added to Consulting's insurance policy, the Ovation defendants demonstrated that Villano's misstatements were not intentional as opposed to merely negligent. In opposition, Concrete failed to raise a triable issue of fact. Concrete did not submit any evidence demonstrating that Villano knew that Concrete was not insured before that fact was discovered when the January 2016 disclaimer of coverage was issued. Since Concrete failed to rebut the Ovation defendants' prima facie showing, the Supreme Court should have granted that branch of the Ovation defendants' motion which was for summary judgment dismissing the third cause of action, alleging fraud or intentional misrepresentation, insofar as asserted against Ovation.

The Supreme Court should have granted those branches of the Ovation defendants' motion which were for summary judgment dismissing the fifth cause of action in Scottish American's second third-party complaint, alleging fraud, and the sixth cause of action, alleging negligent misrepresentation, insofar as asserted against them, since Scottish American, which failed to timely process the policy change request, cannot demonstrate that it relied on any misrepresentation by the Ovation defendants to its detriment (see Broecker v Conklin Prop., LLC, 189 A.D.3d at 752; Garendean Realty Owner, LLC v Lang, 175 A.D.3d at 653).

The Supreme Court properly granted summary judgment to the defendant Town of Greenburgh. The plaintiff's action was time-barred insofar as it was asserted against the Town, as it was commenced more than one year and 90 days after the Town issued a certificate of occupancy for the residence at issue (see, General Municipal Law § 50-i; Greifenberger v Pav, 225 AD2d 731; Merritt v Hooshang Constr., 216 AD2d 542; Pleasant Ridge Townhouses Homeowners' Assn. v T & D Constr. Corp., 181 AD2d 871, 872). Under the circumstances of this case, the Town was not estopped from asserting a defense based on the Statute of Limitations (see, Safarowic v Dinozzi Bldg. Corp., 206 AD2d 356, 357; Okie v Village of Hamburg, 196 AD2d 228).

The Supreme Court also properly modified an order of the same court, dated December 16, 1998, by providing that those branches of the prior motion of the defendants Samuel Ginsburg and Martin Ginsburg individually which were for summary judgment dismissing the complaint insofar as asserted against them were granted. After these defendants made out a prima facie case for summary judgment, the plaintiff failed to raise triable issues as to whether either of these defendants knowingly made false representations concerning the premises to him, an essential element of his claim for fraud (see, C.P.J. Inc. v 234 High Seas Rest. Corp., 260 AD2d 524, 525).

Upon granting reargument, the Supreme Court also properly adhered to its determination in its order dated December 16, 1998, granting summary judgment to Ginsburg & Ginsburg. In support of the motion for summary judgment, the movants made out a prima facie case by demonstrating that the plaintiff failed to establish all of the elements of his cause of action to recover damages for fraud, in that he did not show that Ginsburg & Ginsburg made material representations to him with knowledge of their falsity (see, C.P.J. Inc. v 234 High Seas Rest. Corp., supra). The plaintiff's opposition to the motion consisted merely of conclusory allegations, which were insufficient to raise a triable issue of fact (see, Blankman v Incorporated Vil. of Sands Point, 249 AD2d 349, 350; Rosenbaum v Boulder Ridge Homeowners Assn., 276 AD2d 615 [decided herewith]).

In a probate proceeding, the proponent appeals from so much of an order of the Surrogate's Court, Richmond County (Fusco, S.), dated December 30, 2002, as denied those branches of the proponent's motion which were for summary judgment dismissing the objections based on fraud and undue influence.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the proponent's motion which was for summary judgment dismissing the objection based on fraud and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

To state a claim alleging fraud, the objectants were required to demonstrate that the proponent "knowingly made a false statement to the testator which caused him to execute a will that disposed of his property in a manner differently than he would have in the absence of that statement" (Matter of Evanchuk, 145 A.D.2d 559, 560, 536 N.Y.S.2d 110 [1988]). Here, the objectants failed to present any evidence of a false statement knowingly made by the proponent. Thus, the Surrogate's Court should have granted the proponent's motion for summary judgment with respect to the issue of fraud.