Anos Diner, Inc. v. Pitios Gourmet, Ltd.

100 A.D.2d 948, 475 N.Y.S.2d 86, 1984 N.Y. App. Div. LEXIS 18087

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 1984
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, defendants appeal from so much of an order of the Supreme Court, Nassau County (Wager, J.), dated May 25, 1983, as granted plaintiffs’ motion to the extent of granting leave to serve an amended reply denying the material allegations of the eighth counterclaim in defendants’ amended answer and adding an affirmative defense of fraudulent inducement to the same counterclaim. H Order reversed, insofar as appealed from, with costs, and plaintiffs’ motion denied in its entirety. 11 While there has been no showing by defendants that they were prejudiced by the order of Special Term granting, in part, plaintiffs’ motion for leave to serve an amended reply, particularly since the delay between service of the original reply and the motion was relatively short and discovery had not been completed prior to defendants’ awareness of the omitted material (see Shanahan v Shanahan, 92 AD2d 566), the order was nevertheless improper because plaintiffs failed to submit an affidavit of merit by a party having personal knowledge of the facts underlying the denial of the allegations in defendants’ eighth counterclaim and the affirmative defense of fraudulent inducement in connection with this counterclaim (see Curotola Bros. Trucking Co. v Savemart, Inc., 96 AD2d 546; De Rosa v Di Benedetto, 86 AD2d 648). Although plaintiffs urge that the affirmation of counsel was sufficient to support the motion, our reading of the affirmation does not support this contention. 11 Moreover, plaintiffs failed to plead with particularity the requisite elements of the defense of fraudulent inducement, and did not establish the merits of such defense in their proposed amended reply. Their claim is not supported with specific and detailed allegations of fact; instead, plaintiffs have merely recited in conclusory language the elements of fraudulent inducement, which is clearly insufficient (see Cyg-Knit Mills v Denton Sleeping Garment Mills, 26 AD2d 800). Mangano, J. P., O’Connor, Boyers and Eiber, JJ., concur.