Commissioners of the State Insurance Fund v. Wojciech Perkowski, Inc.

291 A.D.2d 219, 737 N.Y.S.2d 280, 2002 N.Y. App. Div. LEXIS 1518

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 2002
• Status: Published

Opinion

—Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered October 24, 2001, which denied defendant-appellant’s motion to dismiss plaintiffs fourth cause of action pursuant to CPLR 3016 (b); 3211 (a) (7) and 3212, unanimously affirmed, without costs.

Based on the allegations in the complaint, which must be taken as true on a motion to dismiss for failure to state a cause of action (see, Cron v Hargro Fabrics, 91 NY2d 362, 366), and the affidavits properly submitted by plaintiff in opposition to the motion to dismiss (see, Mulder v Donaldson, Lufkin & Jenrette, 208 AD2d 301, 307), plaintiffs fourth cause of action sufficiently states the elements of the claim and clearly informs defendant-appellant of the circumstances constituting the alleged fraud (see, Lanzi v Brooks, 43 NY2d 778, 780). The evidentiary matter submitted by plaintiff was also sufficient to raise triable issues of fact precluding a grant of summary judgment to defendant-appellant. Concur — Williams, J.P., Andrias, Rosenberger and Buckley, JJ.