Aiding and Abetting the Commission of a Tort as a Cause of Action in New York

In New York, a plaintiff may assert a claim against a party who aids and abets another in committing a tort. However, this type of liability is limited in scope and subject to strict pleading requirements. Courts are clear that aiding and abetting is not a stand-alone tort. Instead, it must be anchored to an independently viable tort claim. The legal standard for aiding and abetting involves three elements, each of which must be sufficiently alleged for the claim to survive.

Existence of an Underlying Tort

The first element requires the existence of an underlying tort. This means that there must be a valid, actionable wrong that stands on its own under New York law. Without it, the entire claim collapses. For example, if the underlying allegations involve fraud, breach of fiduciary duty, or intentional infliction of emotional distress, each of those torts must independently meet the legal threshold for sufficiency. If the plaintiff fails to allege a cognizable tort—meaning the conduct described does not meet the legal criteria for a recognized tort—then any aiding and abetting claim necessarily fails. This was reaffirmed in Farah v. The City of New York, where the court emphasized that no aiding and abetting liability can be sustained in the absence of a valid underlying tort.

Defendant’s Actual Knowledge of the Tort

The second required element is the defendant’s actual knowledge of the underlying tort. It is not enough that the defendant should have known or could have inferred that wrongful conduct was taking place. The courts require a specific allegation that the defendant actually knew about the tortious activity. This prevents liability from attaching to innocent third parties who were only peripherally involved or unaware of the wrongdoing. Vague or conclusory allegations are insufficient; plaintiffs must offer concrete facts indicating the defendant’s awareness of the tort.

Substantial Assistance in the Commission of the Tort

The third element is that the defendant must have provided substantial assistance in carrying out the tort. The assistance must go beyond minimal involvement or passive acquiescence. It must be significant and closely linked to the commission of the tort itself. For instance, offering resources, facilitating the misconduct, or playing a strategic role in the harmful action may qualify as substantial assistance. Courts look at the duration, nature, and impact of the assistance in deciding whether this element is satisfied.

Conclusion

Aiding and abetting is a secondary form of liability that hinges entirely on the existence of a primary tort. In New York, courts have made it clear that unless a plaintiff can first establish a valid tort, and then show both the aider’s actual knowledge and their substantial assistance in the tortious conduct, the claim will not proceed. Each of these elements is independently essential. Failure to allege even one is fatal to the cause of action. Therefore, plaintiffs must take care to plead aiding and abetting claims with precision and factual support, as New York courts are quick to dismiss those that fall short.

Find the Law

“To assert a claim for aiding and abetting, a plaintiff must allege: (1) the existence of an underlying tort; (2) the defendant’s actual knowledge of the underlying tort; and (3) the defendant’s provision of substantial assistance in the commission of the underlying tort. See Markowits v Friedman, 144 A.D.3d 993, 996. 2d Dept. (2016). Because Plaintiff failed to state a cognizable underlying tort, there can be no aiding and abetting liability. See Li v Shih, 207 A.D.3d 444, 448 2d Dept. (2022).” Farah v. The City of New York, 2024 N.Y. Slip Op. 30979 (N.Y. Sup. Ct. 2024)