Cellar of Jeans "N" Jewels, Inc. v. Rose & Kiernan, Inc.

77 A.D.2d 703, 430 N.Y.S.2d 397, 1980 N.Y. App. Div. LEXIS 12437

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1980
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered September 13, 1979 in Albany County, which granted defendants’ motion to dismiss plaintiff’s second cause of action for failure to state a cause of action. Since defendants’ motion to dismiss plaintiff’s second cause of action under CPLR 3211 (subd [a], par 7) was not supported by extrinsic proof, the only issue before Special Term was whether it stated a cause of action (cf. Rovello v Orofino Realty Co., 40 NY2d 633; Wolcott v Broughton, 57 AD2d 1022). Despite plaintiff’s failure to oppose the motion, we conclude that it does and reverse Special Term’s order. Accepting the allegation of this poorly drafted complaint as true, the second cause of action may be fairly deciphered as spelling out a claim that defendants negligently failed to procure certain insurance coverage requested by plaintiff and compounded the damage to its financial position after a loss by causing plaintiff to rely on a negligently made representation that a settlement would be made. If proven, plaintiff would be entitled to recover (see 29 NY Jur, Insurance, §§ 457-468) and, therefore, the instant cause of action may not presently be dismissed for legal insufficiency. Order reversed, on the law, and motion denied, without costs. Greenblott, J. P., Kane, Staley, Jr., Mikoll and Casey, JJ., concur.