Biggar v. Buteau

Appellate Division of the Supreme Court of New York

Biggar v. Buteau

51 A.D.2d 601, 377 N.Y.S.2d 788, 1976 N.Y. App. Div. LEXIS 10913

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 8, 1976

StatusPublished

Cited by4 cases

This text of 51 A.D.2d 601 (Biggar v. Buteau) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Biggar v. Buteau, 51 A.D.2d 601, 377 N.Y.S.2d 788, 1976 N.Y. App. Div. LEXIS 10913 (N.Y. Ct. App. 1976).

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Opinion

Appeal from an order of the Supreme Court at Special Term, entered July 22, 1975 in Delaware County, which granted defendant’s motion to dismiss plaintiff’s amended complaint for failure to state a cause of actiop. with leave to plaintiff to apply to Special Term to replead. We agree with Special Term that the amended complaint is defective. The gravamen or gist of the cause of action is fraud. Aside from conclusory allegations, no fraud is alleged. CPLR 3013 requires a pleading to set forth not only a statement with sufficient particularity to give the court and parties notice of the transaction, but also "the material elements of each cause of action”. In addition, CPLR 3016 (subd [b]) requires that in an action based upon fraud "the circumstances constituting the wrong shall be stated in detail.” The amended complaint lacks the basic rudiments mandated by these provisions (Channel Master Corp. v Aluminium .Ltd. Sales, 4 NY2d 403; Meltzer v Klein, 29 AD2d 548; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3016.05). "Bare allegations of fraud without any allegation of the details constituting the wrong are not sufficient to sustain such a cause of action (CPLR 3016, [602]*602subd [b]; Ingraham v International Salt Co., 114 App Div 791); and plaintiffs characterization of the representations as being fraudulent is not sufficient to sustain the cause”. (Meltzer v Klein, supra, p 548.) Plaintiffs allegations that defendant acted "fraudulently” or "engaged in trickery” or "chicanery” are merely conclusions insufficient to allege causes of actions based on fraud (Block v Landegger, 44 AD2d 671; Hirn v Harris, 30 AD2d 951). If plaintiff needs additional information to frame her complaint, procedure is available to conduct an examination for that purpose (CPLR 3102, subd [a]; Green v Green’s Auto Gear & Parts Co., 35 AD2d 924; 3A Weinstein-Korn-Miller, NY Civ Prac, par 3102.11). Order affirmed, without costs. Greenblott, J. P., Sweeney, Kane, Larkin and Reynolds, JJ., concur.

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Appeal from an order of the Supreme Court at Special Term, entered July 22, 1975 in Delaware County, which granted defendant’s motion to dismiss plaintiff’s amended complaint for failure to state a cause of actiop. with leave to plaintiff to apply to Special Term to replead. We agree with Special Term that the amended complaint is defective. The gravamen or gist of the cause of action is fraud. Aside from conclusory allegations, no fraud is alleged. CPLR 3013 requires a pleading to set forth not only a statement with sufficient particularity to give the court and parties notice of the transaction, but also "the material elements of each cause of action”. In addition, CPLR 3016 (subd [b]) requires that in an action based upon fraud "the circumstances constituting the wrong shall be stated in detail.” The amended complaint lacks the basic rudiments mandated by these provisions (Channel Master Corp. v Aluminium .Ltd. Sales, 4 NY2d 403; Meltzer v Klein, 29 AD2d 548; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3016.05). "Bare allegations of fraud without any allegation of the details constituting the wrong are not sufficient to sustain such a cause of action (CPLR 3016, [602]*602subd [b]; Ingraham v International Salt Co., 114 App Div 791); and plaintiffs characterization of the representations as being fraudulent is not sufficient to sustain the cause”. (Meltzer v Klein, supra, p 548.) Plaintiffs allegations that defendant acted "fraudulently” or "engaged in trickery” or "chicanery” are merely conclusions insufficient to allege causes of actions based on fraud (Block v Landegger, 44 AD2d 671; Hirn v Harris, 30 AD2d 951). If plaintiff needs additional information to frame her complaint, procedure is available to conduct an examination for that purpose (CPLR 3102, subd [a]; Green v Green’s Auto Gear & Parts Co., 35 AD2d 924; 3A Weinstein-Korn-Miller, NY Civ Prac, par 3102.11). Order affirmed, without costs. Greenblott, J. P., Sweeney, Kane, Larkin and Reynolds, JJ., concur.

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Bluebook (online)

51 A.D.2d 601, 377 N.Y.S.2d 788, 1976 N.Y. App. Div. LEXIS 10913, Counsel Stack Legal Research, https://law.counselstack.com/opinion/biggar-v-buteau-nyappdiv-1976.

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