Rose, J.
Plaintiff's daughter, Heather Bynum, attended a music festival where she ingested a harmful substance and sustained significant injuries. Plaintiff then commenced this action in her individual capacity and on behalf of Bynum, asserting causes of action alleging, among other things, negligence and fraud against defendants, the promoters of the festival
Defendants contend that plaintiff's first two causes of action sounding in negligence fail to sufficiently allege that defendants owed a duty of care to Bynum. We cannot agree. In this procedural context, we "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]; accord Slezak v Stewart's Shops Corp., 133 A.D.3d 1179, 1179 [2015]). "`Whether the plaintiff will ultimately be successful in establishing those allegations is not part of the calculus'" (Snyder v Brown Chiari, LLP, 116 A.D.3d 1116, 1117 [2014], quoting Landon v Kroll Lab. Specialists, Inc., 22 N.Y.3d 1, 6 [2013]).
As for plaintiff's separate cause of action for negligence based upon defendants' alleged failure to provide adequate onsite emergency medical services, defendants, as mass gathering permittees, had a clear duty to provide such services pursuant to the State Sanitary Code (see 10 NYCRR 7-4.3 [n]; 18.3 [b]; 18.4 [a]). According to plaintiff's allegations, defendants knew that Camp Bisco had increased in size every year and that, in 2011, over 26,000 people were in attendance. Plaintiff further asserts that, despite their apparent knowledge, defendants circumvented their duty to provide the proper level of medical services at the festival by misrepresenting to the relevant permitting authorities that the maximum attendance for the 2012 edition of Camp Bisco attended by Bynum would be just 12,000 people (see 10 NYCRR 18.4 [a] [1], [2]). Accepting plaintiff's further statement that defendants' provision of inadequate medical services was a proximate cause of Bynum's injuries, we find that these allegations state a cognizable theory of negligence as well (see e.g. Burgundy Basin Inn v Watkins Glen Grand Prix Corp., 51 A.D.2d 140, 143-144 [1976]).
We do agree, however, with defendants' argument that plaintiff's fraud cause of action, which asserts that defendants misrepresented the anticipated attendance at Camp Bisco to the municipalities that issued the permits allowing the festival to take place, is not sufficient to survive a motion to dismiss. In order to state a cause of action for fraudulent misrepresentation, a plaintiff must allege with particularity "`a misrepresentation or a material omission of fact which was
Here, plaintiff concedes that defendants never made any misrepresentations regarding the estimated attendance at Camp Bisco to Bynum directly, which, ordinarily, is fatal to a claim of fraudulent misrepresentation (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d at 179-180). Contrary to plaintiff's contention, the third-party reliance doctrine is inapplicable to the facts of this case, as plaintiff does not allege that defendants' representations to the relevant permitting authorities regarding the expected attendance at Camp Bisco were made "for the purpose of being communicated to [Bynum]" or with the intent that such representations would "reach and influence [her]" (Eaton Cole & Burnham Co. v Avery, 83 N.Y. 31, 35 [1880]; see Wildenstein v 5H & Co, Inc., 97 A.D.3d 488, 490 [2012]; compare Buxton Mfg. Co. v Valiant Moving & Stor., 239 A.D.2d 452, 453-454 [1997]; Desser v Schatz, 182 A.D.2d 478, 479-480 [1992]).
We also agree with defendants that Supreme Court should have dismissed the complaint in its entirety against Keber and Fordin, who are co-owners of defendant MCP Presents, LLC (see Limited Liability Company Law § 609 [a]). Plaintiff does not specifically allege any manner in which Fordin "participated in the commission of a tort in furtherance of company business or to benefit the business" (Haire v Bonelli, 57 A.D.3d 1354, 1357 [2008]; see Kew Gardens Hills Apt. Owners, Inc. v Horing Welikson & Rosen, P.C., 35 A.D.3d 383, 386 [2006]). As for Keber, plaintiff asserts only that he personally participated in the alleged fraudulent misrepresentation, a cause of action—as we have said—that plaintiff has failed to state.
Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied defendants' motion to dismiss (1) the entire complaint against defendant Brett Keber and defendant Jonathan Fordin, and (2) the third cause of action against the remaining defendants; motion granted to that extent and said causes of action dismissed as to said respective defendants; and, as so modified, affirmed.