176-178 Ashburton Avenue Corp. v. New York Property Insurance Underwriting Ass'n

124 A.D.2d 718, 508 N.Y.S.2d 227, 1986 N.Y. App. Div. LEXIS 62022

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 1986
• Status: Published

Opinion

An examination of the instant complaint indicates that the plaintiff has merely reiterated the allegations set forth in the third cause of action asserted in a complaint in a prior action. That cause of action had been dismissed for legal insufficiency, without leave to amend the complaint, by an order of the Supreme Court, Westchester County, dated October 1, 1984. Accordingly, Special Term properly dismissed the complaint in the case at bar. We strongly disapprove of the plaintiffs attempt to circumvent the order denying it leave to amend the complaint in the prior action through the simple and transparent expedient of disguising this essentially identical action as one sounding in tort instead of contract. Brown, J. R, Rubin, Lawrence and Kooper, JJ., concur.