Defendants move for an order, pursuant to CPLR 3211(a)(1), (5), (7) and (8), dismissing plaintiff's complaint.

Upon the foregoing papers, the motion is decided as follows:Plaintiff and defendant John Pollis are members of the [*2]defendant Knollwood Commons at Red Hook, LLC (hereinafter "Knollwood"). The primary business purpose of defendant Knollwood was the purchase and development of residential and commercial properties. Plaintiff's complaint contains three causes of action. The first cause of action, sounding in fraud, alleges that defendant Pollis caused the plaintiff to enter into a back dated Operating Agreement. The second cause of action alleges defendant Pollis breached his fiduciary duty to the plaintiff. The last cause of action seeks to compel defendant Pollis to account for all income and expenses of defendant Knollwood.

Defendants indicate that the documentary evidence as submitted in support of their motion warrants dismissal under CPLR 3211(a)(1) and 3211(a)(7).

Dismissal is warranted under CPLR 3211(a)(1) only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see Leon v. Martinez, 84 NY2d 83 [1994]).

When a party moves to dismiss a complaint pursuant to CPLR 3211[a][7], the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action (see Guggenheimer v. Ginzburg, 43 NY2d 268 [1977]). In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Nonnon v. City of New York, 9 NY3d 825 [2007]). Whether a plaintiff can ultimately establish its allegations is not part of the calculus (see EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11 [2005]).

Paragraph thirty (30) of the complaint states:

"The Plaintiff, as he had done on numerous prior occasions, subsequent to the January 22, 2013 agreement with Capital One, N.A., Plaintiff Stortini, as directed by Defendant Pollis, appeared at the Defendant Pollis' offices located at 7 South Parsonage Street, Rhinebeck, New York where the Plaintiff Stortini was presented with multiple documents which the Plaintiff Stortini was directed to sign. Plaintiff Stortini was advised that the documents were required for a closing to occur to assist in effectuating the terms of the January 22, 2013 agreement with Capital One, N.A. One of the documents that the Plaintiff signed, unknown to the Plaintiff at the time, was a document purporting to be the Operating Agreement of Knollwood at Red Hook, LLC backdated to March 15, 2005."

Paragraph thirty-one (31) of the complaint states:

"At no time at the signing of the closing documents at the Defendant Pollis' office, was the Plaintiff Stortini advised that he was signing the fraudulent, back dated Operating Agreement."

To properly plead a cause of action to recover damages for fraud, the plaintiff must allege that (1) the defendant made a false representation of fact, (2) the defendants had knowledge of the falsity, (3) the misrepresentation was made in order to induce the plaintiff's reliance, (4) there was justifiable reliance on the part of the plaintiff, and (5) the plaintiff was injured by the reliance (see Vermont Mut. Ins. Co. v. McCabe & Mack, LLP, 105 AD3d 837 [2nd Dept 2013]).

Read as whole the plaintiff's complaint, specifically his first cause of action alleging fraud, indicates that it was plaintiff's course of dealing with the defendant Pollis to blindly sign documents without regard for either the document's meaning or contents. A party who signs a document without any valid excuse for having failed to read it is conclusively bound by its terms (see Sofio v. Hughes, 162 AD2d 518 [2nd Dept 1990] appeal denied by 76 NY2d 712). Here, plaintiff's complaint clearly indicates that plaintiff failed to read the Operating Agreement of Knollwood at Red Hook, LLC backdated to March 15, 2005. Accordingly, plaintiff's failure to read the agreement prevents him from establishing justifiable reliance, an essential element of fraud in the execution of the agreement(see Sorenson v. Bridge Capital Corp., 52 AD3d 265 [1st Dept 2008] leave to appeal dismissed by 12 NY3d 748). As such, plaintiff's first cause of action is dismissed.

Plaintiff's second cause of action alleges that the actions of defendant Pollis constitute bad faith and a breach of his fiduciary duties to the plaintiff.

A cause of action sounding in breach of fiduciary duty must be pleaded with the particularity required by CPLR 3016(b) (see Deblinger v. Sani-Pine Prods. Co., Inc., 107 AD3d 659 [2nd Dept 2013]). In order to establish a breach of fiduciary duty, plaintiff must prove the existence of a fiduciary relationship, misconduct by the defendants, and damages directly caused by the defendants' misconduct (see Kurtzman v. Bergstol, 40 AD3d 588 [2nd Dept 2007]).

In support of his cause of action, plaintiff alleges:

"That the actions of the Defendant Pollis as aforedescribed constitute bad faith and a breach of Defendant Pollis' fiduciary duties to the Plaintiff."

It is apparent that the breach of duty claim fails to comply with the heightened pleading requirement of CPLR 3016(b). The cause of action rests upon the highly conclusory assumption that [*3]defendant Pollis owed a fiduciary duty to the plaintiff and that the acts and conduct set forth in the complaint breached this duty. While plaintiff purports to incorporate by reference all of the prior allegations in the complaint, his pleading fails to particularize the facts allegedly giving rise to the fiduciary duties and the specific misconduct by defendants that are said to represent a breach of those fiduciary duties. Moreover, in the absence of this particularization, defendants and the Court have no basis for assessing the legal sufficiency of the allegations under CPLR 3211(a)(7). Based on the foregoing, the second cause of action for breach of fiduciary duty is dismissed under CPLR 3016(b).

The plaintiff's third and final cause of action seeks an accounting of defendant Knollwood. The right to an accounting is premised upon the existence of a confidential or fiduciary relationship and a breach of the duty imposed by that relationship respecting property in which the party seeking the accounting has an interest (see Dee v. Rakower, 112 AD3d 204 [2nd Dept 2013]). As plaintiff's second cause of action seeking damages based upon an alleged breach of a fiduciary duty has been dismissed, the third cause of action for an accounting must also be dismissed as it is now academic (see generally Sutton Park Dev. Corp. Trading Co. v. Guerin & Guerin Agency, 297 AD2d 430 [3rd Dept 2002]).

Based upon the foregoing, plaintiff's complaint is dismissed in its entirety.

This constitutes the decision and order of the Court.

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HON. James D. Pagones, A.J.S.C.