The following e-filed documents for Motion Sequences 08 and 09 listed by NYSCEF document numbers “110,” “111,” “119″, “120″, “121″, “122″, “123″, “124″, “125″, “126″, “127″, “129″, “130″, “131″, “132″, “145″, “149″, “153″, “154,” and exhibits have been read on this motion: Motion Sequence 08 Notice of Motion and Affidavits/Affirmations X Affidavit/Affirmation in Opposition X Reply Affidavit/Affirmation X Motion Sequence 09 Notice of Motion and Affidavits/Affirmations X Memorandum of Law in Support X Affidavit/Affirmation in Opposition X Reply Affidavit/Affirmation X Background The plaintiff initiated this proceeding by way of Verified Complaint alleging ten causes of action against defendant Marilyn Macron (“Macron”), defendant Phillip Shelly (“Shelly”), and defendant JPMorgan Chase Bank, National Association a/k/a Morgan Chase & Co. (collectively, “Chase Bank”) sounding in declaration of constructive trust, return of gifts in contemplation of marriage, accounting, breach of fiduciary duty, conversion as and against Shelly, fraud, conspiracy to commit fraud, aiding and abetting the commission of fraud, fraudulent withdrawal from bank, and conversion against Macron. Shelly appeared by way of Verified Answer. Macron also appeared by way of Verified Answer and asserted three counterclaims against the plaintiff sounding in intentional infliction of emotional distress. The Verified Complaint alleges that in or about December 2015, the plaintiff and Macron began a romantic relationship, and by January 2016, the plaintiff moved into Macron’s home. The plaintiff alleges that over the next three years, Macron exercised “undue influence” over him and engaged in a course of conduct that led to the systematic depletion of his income and assets. The plaintiff, who asserts that he suffers from a history of depression, was unable to work and receiving disability benefits arising from that. The plaintiff contends that Macron siphoned off between $6,000-$7,000 per month from his disability income, convinced the plaintiff to buy her jewelry in contemplation of their marriage, including but not limited to a $55,000 engagement ring, a $12,000 diamond necklace, a tennis bracelet worth $19,000, and an eternity band worth $12,000; forged Plaintiff’s signature on a checking account withdrawal slip in the amount of $25,600; and convinced Plaintiff to sell one of his properties and to wire $350,000 from the proceeds into Shelly’s escrow account, who was Macron’s attorney, in contemplation of paying off the mortgage on Macron’s home. The $350,000, however, allegedly disappeared, with Shelley claiming he gave it to Macron and Macron claiming that Shelley embezzled it. Subsequently, on or about August 31, 2018, the plaintiff’s health deteriorated, and he was placed in a rehabilitation facility. The plaintiff claims that while he was in the facility, Macron visited him and had him sign a power of attorney appointing her as agent, which he signed. After the plaintiff granted Macron power of attorney, the plaintiff alleges that Macron had him placed in an assisted living facility in November 2019 and “helped herself” to around $10,000 per month of his disability income. The plaintiff asserts that in or about January 2019, he recovered enough physically to remove himself from the assisted living facility. Following his departure from assisted living, the plaintiff came to uncover the fraud that Macron allegedly perpetrated upon the plaintiff. As a result of becoming aware of the information, the plaintiff claims that he broke off his engagement to Macron and demanded a return of the jewelry he had given her as well as the $350,000. Macron allegedly refused to return the money and the jewelry. Motion Sequence 08 Shelly moves this Court by way of Notice of Motion for an order granting him summary judgment dismissing the plaintiff’s fifth cause of action sounding in conversion, sixth cause of action sounding in fraud, seventh cause of action conspiracy to commit fraud, and eighth cause of action sounding in aiding and abetting the commission of fraud as against Shelly pursuant to CPLR §3212. The plaintiff opposes the motion and Shelly submits a reply. To be entitled to judgment on the law, the movant must demonstrate, through the proffer of sufficient, admissible evidence, that no issues of fact exist to be tried concerning the claims in its pleading. Should a movant fail to make that proffer in the first instance, the motion for summary judgment is to be denied without reference to or consideration of the papers in opposition (see, e.g., Winegrad v. NYU Medical Center, 64 NY2d 851). However, should a movant demonstrate its prima facie entitlement to summary judgment, the burden then shifts to the non-moving party, who must rebut the movant’s prima facie entitlement to summary judgment by submitting sufficient evidence to create an issue of fact to be resolved at trial. (Alvarez v. Prospect Hospital, 68 NY2d 320, 324). Notably, “[a] motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.” (Proactive Dealer Servs., Inc. v. TD Bank, 131 AD3d 1216, 1219). According to the Verified Complaint, the plaintiff’s fifth cause of action for conversion alleges that the plaintiff transferred $350,000 to Shelly’s escrow account but did not direct Shelly to distribute the funds to Macron. The plaintiff also asserts that Shelly does not dispute having received the $350,000, Shelly distributed the $350,000 to Macron, Macron denies having received the $350,000 and, despite demands from the plaintiff, both Shelly and Macron refuse to return the $350,000. In support of the motion, Shelly relies on the plaintiff’s testimony, a promissory note that states Macron promises to repay the plaintiff the $350,000 before November 2036, and a Satisfaction of Promissory Note that states the plaintiff forgave any balance due on said promissory not because the plaintiff desired to make a gift to Macron. Shelly agues the plaintiff’s testimony establishes that the $350,000 was wired by the plaintiff into Shelley’s IOLA account with the intent of gifting the funds to Macron. Shelly further asserts that the plaintiff stated he chose to sell his properties and give Macron a portion of the proceeds, to wit the $350,000, to pay off her mortgage of his own volition. As such, Shelly avers that the plaintiff’s testimony, the promissory note, and the Satisfaction of Promissory Note establish that Shelly never had ownership, title, or a superior right of possession of the $350,000 as a matter of law. It has been widely held that a “conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession.” (Westbury Recycling, Inc. v. Westbury Transfer & Recycling, LLC, 209 AD3d 929, 932). The two key elements a plaintiff must establish to prevail on a cause of action for conversion are “(1) plaintiff’s possessory right or interest in the property and (2) defendant’s dominion over the property or interference with it, in derogation of plaintiff’s rights.” (Id.). Shelly’s argument that the plaintiff cannot establish he had ownership, title, or a superior right of possession of the $350,000 because the plaintiff intended the funds to be a gift for Macron is unavailing. A review of the plaintiff’s testimony provides that he wired $350,000 into Shelly’s IOLA account at Shelly’s request to pay off Macron’s mortgage. “[C]onversion occurs when funds designated for a particular purpose are used for an unauthorized purpose. Tangible personal property or specific money must be involved.” (Alpha/Omega Concrete Corp. v. Ovation Risk Planners, Inc., 197 AD3d 1274, 1278-1279). Shelly does not dispute having received the $350,000 and, as so, Shelly has not established that he did not have control over the plaintiff’s $350,000. (Westbury Recycling, Inc., 209 AD3d at 932). In addition, Shelly has not established that the $350,000 was not used for an unauthorized purpose as the moving papers lack any evidence demonstrating that Shelly used the $350,000 to pay Macron’s mortgage or was returned to the plaintiff. (Alpha/Omega Concrete Corp., 197 AD3d at 1278-1279). Since Shelly has failed to proffer of sufficient and admissible evidence demonstrating that no issues of fact exist, with respect to the plaintiff’s fifth cause of action alleging conversion. (Winegrad, 64 NY2d at 851). The plaintiff’s sixth cause of action sounding in fraud alleges that the plaintiff transfers the $350,000 to Shelly upon “fraudulent pretenses.” Specifically, the plaintiff claims that Macron had no intention of marrying the plaintiff and was “merely actively extracting” as much money from that plaintiff that she could. In addition, the plaintiff alleges that the Macron promised that the $350,000 would be safe in Shelly’s IOLA account and Shelly promised to hold and distribute the money as directed. As such, the plaintiff claims that the representations were false, Shelly and Macron never intended to return the $350,000 to the plaintiff, and Shelly and Macron acted with the intent to defraud the plaintiff. Shelly argues that the plaintiff cannot claim he justifiably relied on any misrepresentations regarding the $350,000 based on his testimony that the purpose of the transfer was to help pay for Macron’s mortgage and the $350,000 was a gift as evidenced by the promissory note and Satisfaction of Promissory Note. To prevail on a cause of action alleging fraud, the plaintiff must demonstrate “a misrepresentation or material omission of fact, knowledge of its falsity, intent to induce reliance, justifiable reliance, and damages.” (Pacella v. RSA Consultants, Inc., 164 AD3d 806, 809). As discussed above, the plaintiff testified that Shelly asked the plaintiff to wire the $350,000 because Shelly was going to take care of paying Macron’s mortgage. Shelly does not dispute having received the $350,000 from the plaintiff or that he told the plaintiff he would “take care of’ paying Macron’s mortgage. Whether the $350,000 was a gift to Macron is of no moment as Shelly has not provided any argument or documentation establishing that Shelly actually paid Macron’s mortgage. Therefore, Shelly has not eliminated all issues of fact as to whether the plaintiff justifiably relied on Shelly’s representation that he would “take care of’ paying Macron’s mortgage and, as so, the plaintiff’s opposition need not be considered. (Id.; Winegrad at 851). Additionally, while Shelly argues that the $350,000 was eventually “gifted” to Macron, Macron claims that the $350,000 was either returned to the plaintiff or were used to pay off her mortgage are unsubstantiated. The plaintiff’s seventh cause of action alleging conspiracy to commit fraud asserts that Shelly’s and Macron’s coordinated efforts demonstrate that there was an agreement between them to defraud the plaintiff. The plaintiff also claims that Shelly committed an overt act in furtherance of his agreement with Macron and, since Shelly did not immediately return the $350,000, Shelly’s acceptance of the funds was intentional. Shelly argues that the plaintiff’s claim cannot stand because conspiracy to commit a fraud cannot be alleged as an independent cause of action. It is well established that “New York does not recognize civil conspiracy to commit a tort…as an independent cause of action.” (Blanco v. Polanco, 116 AD3d 892, 896). Since the Verified Complaint alleges conspiracy to commit a fraud is alleged as an independent cause of action, Shelly has established prima facie entitlement as a matter of law. The plaintiff, in opposition, argues that it is uncontested that accepted the $350,000 and either kept it or gave it to Macron rather than returning it to the plaintiff. The plaintiff’s opposition, however, is silent with respect to alleging conspiracy to commit fraud independently rather than as part of the underlying tort. (Id.). Thus, the plaintiff fails to raise a material issue of fact and, as so, the plaintiff’s seventh cause of action as and against Shelly should be dismissed. (Winegrad at 851). The plaintiff’s eighth cause of action sounding in aiding and abetting fraud alleges that the plaintiff transferred the $350,000 to Shelly under fraudulent pretenses. Specifically, the plaintiff claims that Macron and Shelly knew they sought to defraud the plaintiff because Shelly promised to hold the funds and distribute it as directed. The plaintiff asserts that he never directed Shelly to distribute the funds to Macron. Since Shelly claims to have given the $350,000 to Macron without the plaintiff’s express direction to do so, the plaintiff claims Shelly substantially assisted Macron in defrauding the plaintiff. Shelly argues that, based on his arguments regarding the plaintiff’s cause of action alleging fraud, the plaintiff’s cause of action alleging aiding and abetting fraud should also be dismissed. To prevail on a claim for aiding and abetting fraud, the plaintiff must establish “(1) the existence of an underlying fraud, (2) knowledge of the fraud by the aider and abettor, and (3) substantial assistance by the aider and abettor in the achievement of the fraud.” (Betz v. Blatt, 160 AD3d 696, 700). Considering Shelly has not eliminated all material issue of fact regarding the plaintiff’s cause of action alleging fraud, Shelly has not established prima facie entitlement to summary judgment as a matter of law as to the plaintiff’s claim for aiding and abetting fraud. (Id.; Winegrad at 851). Moreover, conflicting testimony warrants the denial of the summary judgment motion to dismiss this cause of action. Motion Sequence 09 Macron moves this Court by way of Notice of Motion for an order granting Macron summary judgement dismissing the causes of action asserted against her, granting summary judgment on the issue of liability with respect to Macron’s counterclaims asserted against the plaintiff, setting this matter down for an inquest and awarding Macron costs and sanctions against the plaintiff and plaintiff’s counsel for maintaining a frivolous action. The plaintiff opposes the motion and Macron submits a reply. The plaintiff’s first cause of action seeking the declaration of a constructive trust alleges that Macron, who is an attorney, maintained a confidential relationship with the plaintiff that rose to the level of a fiduciary relationship. Specifically, the plaintiff asserts that Macron fraudulently promised to marry the plaintiff, convinced the plaintiff to transfer close to a million dollars in cash and jewelry to Macron, who was unjustly enriched. Macron argues that her promise was not false and, according to the plaintiff’s testimony, the plaintiff called off their engagement and admits that Macron’s promise was not fraudulent. “To obtain the remedy of a constructive trust, a party is generally required to establish four factors, or elements, by clear and convincing evidence: (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment flowing from the breach of the promise.” (Seidenfeld v. Zaltz, 162 AD3d 929, 934). Parties who are engaged to be married are considered to have a confidential relationship. (Sharp v. Kosmalski, 40 NY2d 119). Here, it is undisputed that the plaintiff and Macron were engaged to be married at the time the plaintiff transferred the $350,000 to pay Macron’s mortgage and, as so, are considered to have a confidential relationship. (Id.). Macron’s argument that the plaintiff broke off the engagement is unavailing considering the record before the Court establishes that the plaintiff’s and Macron’s engagement ended after the plaintiff transferred the funds to Shelly. Considering, Macron has not demonstrated the absence of a confidential relationship with the plaintiff, Macron has not established prima facie entitlement to summary judgment as a matter of law. (Id.; Winegrad at 851). The Court need not address the plaintiff’s second cause of action alleging a return of gifts in contemplation of marriage since the plaintiff, in his opposition to the instant motion, affirmatively withdrew this claim. Accordingly, the plaintiff’s second cause of action should be dismissed. The plaintiff’s third cause of action asserting an accounting states that Macron owed the plaintiff a fiduciary duty which entitles the plaintiff to an accounting for the entire period that Macron exercised control over his property or, in the alternative, from the time that Macron became the plaintiff’s agent under a power of attorney. Macron argues that the plaintiff testified he had only ever given power of attorney to his ex-wife, and not to Macron. “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.” (Zohar v. LaRock, 185 AD3d 987, 991). As addressed above, it is undisputed that the plaintiff and Macron were engaged to be married at the time the plaintiff transferred the $350,000, which demonstrates that a confidential relationship existed. (see Sharp, 40 NY2d 119). Macron’s argument that she was never given power of attorney by the plaintiff falls short of eliminating all material issues of fact as to whether a confidential relationship existed as a result of her engagement to the plaintiff. (Zohar, supra). Accordingly, Macron failed to demonstrate, through the proffer of sufficient, admissible evidence, that no issues of fact exist with respect to the plaintiff’s third cause of action and the plaintiff’s opposition need not be addressed. (Winegrad at 851). The plaintiff’s fourth cause of action for breach of fiduciary duty alleges that Macron owed a fiduciary duty to the plaintiff, which Macron breached when she took money belonging to the plaintiff through undue influence and without the plaintiff’s express permission. Macron argues that, according to the plaintiff’s testimony, the plaintiff asserted this claim with the belief that Macron would represent him. However, the also plaintiff admitted during his deposition that Macron served as counsel to the plaintiff. “In order to establish a breach of fiduciary duty, a plaintiff must prove the existence of a fiduciary relationship, misconduct by the defendant, and damages that were directly caused by the defendant’s misconduct.” (GMP Fur Trade Fin., LLC v. Brenner, 169 AD3d 649, 650). A fiduciary relationship has been found to exist where two people are engaged to be married. (see, e.g., Rosenzweig v. Givens, 13 NY3d 774; In re Estate of Greiff, 92 NY2d 341, noting that “there is a unique character of the inchoate bond between prospective spouses — a relationship by its nature permeated with trust, confidence, honesty and reliance” giving rise to a “special relationship between betrothed parties”). Macron has established though the plaintiff’s testimony that she never represented the plaintiff in a professional capacity. However, as already provided, there is no dispute that the plaintiff and Macron were engaged when the plaintiff transferred $350,000 to Shelly with the understanding that the funds would be used to pay off Macron’s mortgage. (Id.). Macron fails to submit evidence in admissible form establishing that a fiduciary relationship did not exists between her and the plaintiff by virtue of them being engaged at the time of the transfer. Therefore, Macron has not established prima facie entitlement to summary judgment with respect to the plaintiff’s fourth cause of action. (Winegrad at 851). The allegations asserted by the plaintiff with respect to his fifth cause of action sounding in conversion, sixth cause of action sounding in fraud, seventh cause of action sounding in conspiracy to commit fraud and eighth cause of action sounding in aiding and abetting fraud are set forth above. Macron argues that the plaintiff admitted that it was the plaintiff’s idea to transfer the $350,000 to pay Macron’s mortgage, the promissory note and Satisfaction of Promissory Note were written at the plaintiff’s urging, and the promissory note and Satisfaction of Promissory Note were not discussed with Macron before she was asked to sign them. Macron maintains that the plaintiff discussed his intentions with Shelly, not Macron, prior to the transfer and that Macron knew nothing about the transfer until it was completed. Macron avers that the plaintiff admitted that the $350,000 was a gift to Macron that the plaintiff made of his own volition. Moreover, Macron contends that the plaintiff’s claim for conspiracy to commit fraud is subsumed into the substantive tort and cannot stand as an independent cause of action. With respect to the plaintiff’s fifth cause of action for conversion the plaintiff must establish his possessory right or interest in the $350,000 and Macron’s dominion over the property or interference with it, in derogation of plaintiff’s rights. (Westbury Recycling, Inc., 209 AD3d at 932). Macron’s arguments that she was unaware that the plaintiff transferred the $350,000 to Shelly until after the transaction took place and that the plaintiff intended the funds to be a gift are unpersuasive. As an initial matter, Macron acknowledges that she signed the promissory note, which provides that the plaintiff loaned Macron $350,000. Moreover, it is undisputed that the plaintiff intended for the money to used to pay Macron’s mortgage. Macron fails to submit admissible evidence demonstrating that the funds were either used to pay off her mortgage or that she returned the funds to the plaintiff. Considering the whereabouts of the of $350,000 is unclear, Macron has not eliminated all material issues of fact as to whether the funds were used for a purpose other than paying her mortgage. (Alpha/Omega Concrete Corp., 197 AD3d at 1278-1279; Winegrad at 851). Regarding the plaintiff’s sixth cause of action alleging fraud, the plaintiff must demonstrate “a misrepresentation or material omission of fact, knowledge of its falsity, intent to induce reliance, justifiable reliance, and damages.” (Pacella, 164 AD3d at 809). Again, Macron’s arguments that she was unaware that the plaintiff transferred the $350,000 to Shelly until after the transaction took place and that the plaintiff intended the funds to be a gift also do not eliminate all material issues of fact as to the plaintiff’s allegation of fraud considering Macron acknowledged that the plaintiff loaned her $350,000 by signing the promissory note. Even if the $350,000 is a gift, the record is clear that the money was intended to be used to pay Macron’s mortgage. Macron does not offer any documentation such as bank statements showing that she never received the money or a satisfaction of the mortgage showing that the mortgage was paid. Considering Macron acknowledges through the promissory note that the plaintiff loaned her $350,000 coupled with Macron failing to proffer evidence that she either never received the money or used the money as intended, Macron merely pokes holes at the plaintiff’s action by pointing out the gaps in the plaintiff’s case. (Stroppel v. Wal-Mart Stores, Inc., 53 AD3d 651). As such, Macron failed to meet her initial burden on this summary judgment motion with respect to the plaintiff’s sixth cause of action alleging fraud. (Winegrad at 851). Since Macron has not eliminated all questions of fact with respect to the existence of a fraud, Macron also does not establish prima facie entitlement to summary judgment on the plaintiff’s eighth cause of action for aiding and abetting fraud. (Betz, 160 AD3d at 700; Winegrad at 851). Macron, however, has met her initial burden as to the plaintiff’s seventh cause of action alleging conspiracy to commit fraud by showing that the plaintiff plead this as an independent cause of action. As already provided, civil conspiracy to commit a tort is not recognized as an independent cause of action. (Blanco, 116 AD3d at 896). The plaintiff, in opposition, argues that it is uncontested that accepted the $350,000 and either kept it or gave it to Macron rather than returning it to the plaintiff. The plaintiff’s opposition fails to raise a material issue of fact as it does not dispute that conspiracy to commit fraud cannot be pled independently. (Id.; Winegrad at 851). The plaintiff’s ninth cause of action asserting fraudulent withdrawal from bank claims that on July 20, 2016 Macron fraudulently presented a withdrawal slip in the amount of $25,600 containing the plaintiff’s forged signature to Chase Bank to be drawn against the plaintiff’s personal checking account. The plaintiff claims that Chase Bank paid the money to Macron but none of the money was used for the benefit of the plaintiff. Macron argues that the plaintiff himself withdrew that same exact amount of money on July 19, 2023, the day before the alleged forgery. Macron submits the withdrawal slips signed by the plaintiff dated July 19, 2016 in the amount of $25,600 in support of her contention. Macron also relies on the plaintiff’s testimony that the $25,600 was withdrawn from a joint account with Macron, the plaintiff never discussed the withdrawal with the bank’s personnel, and he never requested surveillance video to discern who made the withdrawal. Macron, therefore, has submitted evidence demonstrating that no issues of fact exist concerning the plaintiff’s claim for fraudulent withdrawal from bank. (Winegrad at 851). The plaintiff does not oppose Macron’s arguments. “Where a party fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant’s papers may be deemed admitted as there is, in effect, a concession that no question of fact exists.” (114 Woodbury Realty, LLC v. 10 Bethpage Rd., LLC, 178 AD3d 757, 761-762). Therefore, the plaintiff’s nineth cause of action should be dismissed. The plaintiff alleges in his tenth cause of action that Macron, and Macron’s counsel, failed to return a Police Surgeon’s Badge, a suede jacket, six Lladro statutes and a Louis Vuitton wallet, which are collectively worth $12,000. Macron argues that the plaintiff testified that the items were all picked up from Macron at a lawyer’s office in Queens. As provided above, the plaintiff must establish his possessory right or interest in the property and Macron’s dominion over the property or interference with it, in derogation of plaintiff’s rights. (Westbury Recycling, Inc., 209 AD3d at 932). Macron meets her initial burden though the plaintiff’s testimony, which confirms that his son retrieved the plaintiff’s Police Surgeon’s Badge, a suede jacket, six Lladro statutes and a Louis Vuitton wallet. (Id.). The plaintiff’s opposition focuses on the $350,000 at issue, not the personal items set forth in the Verified Complaint. The plaintiff’s failure to oppose Macron’s contentions with respect to the plaintiff’s personal items coupled with the plaintiff’s testimony that his son picked up all the items from the Law Office of Norma Ortiz and “brought them home” supports a finding that the plaintiff’s tenth cause of action should be dismissed. (114 Woodbury Realty, LLC, 178 AD3d at 761-762). Turning to Macron’s counterclaims alleging intentional infliction of emotional distress, Macron argues that the plaintiff’s testimony demonstrates (i) the plaintiff established a doctor-patient relationship with Macron and prescribed her medications without engaging in a proper examination, thereby exacerbating her existing psychological conditions; (ii) encouraged her to consume alcoholic beverages while on medications for depression, which was contra-indicated; and (iii) engaged in mental and emotional abuse, including pressuring Macron to undergo “unnecessary and painful” plastic surgery. It is well settled that the tort of intentional infliction of emotional distress is comprised of four elements, to wit, (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. (Bernat v. Williams, 81 AD3d 679, 680). Here, while Macron has alleged and demonstrated through the tender of admissible evidence that the plaintiff may have engaged in extreme and outrageous conduct, there has been no evidence adduced demonstrating that the plaintiff acted with intent to cause severe emotional distress to Macron, and no evidence of the emotional distress suffered by Macron as a result of this alleged outrageous conduct. Mindful of the fact that the requirements of this tort are “rigorous and difficult to satisfy,” (Bernat, 81 AD3d at 680), Macron has not eliminated all triable issues of fact as to her claim for intentional infliction of emotional distress. (Winegrad, 64 NY2d at 851). Therefore, a finding of summary judgment on the issue of liability is not appropriate. Macron’s arguments regarding sanctions were considered and are unavailing as Macron has not established that the causes of action asserted by the plaintiff were without merit. (Kantrowitz, Goldhamer & Graifman, P.C. v. Ayrovainen, 204 AD3d 652, 653). Moreover, Macron has not established that the plaintiff’s refusal to discontinue his causes of action was intended to delay or prolong this proceeding. (Id.). Accordingly, sanctions are not warranted under these circumstances. Upon the foregoing, it is hereby ORDERED, that the branch of defendant Philip Shelly’s motion (Motion Sequence 08) for an order granting him summary judgment and dismissing the plaintiff’s fifth cause of action for conversion, sixth cause of action for fraud, and eighth causes of action for aiding and abetting fraud as and against defendant Philip Shelly is denied, and it is further ORDERED, that the branch of defendant Philip Shelly’s motion (Motion Sequence 08) for an order granting him summary judgment and dismissing the plaintiff’s seventh cause of action for conspiracy to commit fraud as and against defendant Philip Shelly is granted, and it is further ORDERED, that the branch of defendant Marilyn Macron’s motion (Motion Sequence 09) for an order dismissing all of the plaintiff’s causes of action asserted against her is denied except as provided herein, and it is further ORDERED, that the plaintiff’s seventh cause of action for conspiracy to commit fraud, nineth cause of action for fraudulent withdrawal from bank, and tenth cause of action for conversion asserted as and against defendant Marilyn Macron are dismissed, and it is further ORDERED, that the branch of defendant Marilyn Macron’s motion (Motion Sequence 09) for an order granting her summary judgment on the issue of liability with respect to defendant Marilyn Macron’s counterclaims and setting this matter down for an inquest is denied, and it is further ORDERED, that the branch of defendant Marilyn Macron’s motion (Motion Sequence 09) for an order issuing sanctions against the plaintiff and the plaintiff’s counsel for maintaining a frivolous action is denied. The foregoing constitutes the Order of this Court. Dated: June 12, 2023
