Liability for Aiding and Abetting Requires Affirmative Acts, Not Acquiescence

On November 20, 2019, the Second Department issued a decision in Land v. Forgione, 2019 NY Slip Op. 08396, holding that liability for aiding and abetting requires affirmative acts, not acquiescence to another's misconduct, explaining:

To recover damages for aiding and abetting tortious conduct, a plaintiff must allege knowledge of the alleged tortious conduct by the aider and abettor, and substantial assistance by the aider and abettor in the achievement of the tortious conduct. Substantial assistance requires an affirmative act on the defendant's part; mere inaction can constitute substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff. Here, the plaintiff's proposed amendment was palpably insufficient and devoid of merit because the conduct alleged was insufficient to establish that Huntington substantially assisted the Stag defendants' alleged tortious conduct or owed any fiduciary duty to the plaintiff. Rather, Huntington was protecting its own interests as landlord of the premises.

(Internal quotations and citations omitted).

In New York, a defendant also can be held liable for aiding and abetting a tort or other misconduct. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding aiding and abetting liablity.