Country-Wide Leasing Corp. v. Subaru Distributors Corp.

85 A.D.2d 592, 444 N.Y.S.2d 710, 1981 N.Y. App. Div. LEXIS 16394

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 7, 1981
• Status: Published

Opinion

In an action to recover damages for breach of an oral agreement and for negligent and fraudulent representations concerning that agreement, defendant Subaru Distributors Corporation appeals from so much of an order of the Supreme Court, Nassau County (McGinity, J.), entered November 7, 1980, as denied that part of its motion which was to dismiss the complaint or for summary judgment. Order affirmed insofar as appealed from, with $50 costs and disbursements. Since the appellant’s motion to dismiss was addressed to the complaint as a whole, it must be denied in its entirety upon a determination that one of the causes of action asserted by the complaint is legally sufficient (see Samaras v Gatx Leasing Corp., 75 AD2d 890; De Maria v Josephs, 41 AD2d 655). On this record, it cannot be held as a matter of law that plaintiff fails to state a cause of action for fraudulent representations. In addition, summary judgment is not proper here where issues of fact are raised concerning these representations. Moreover, where plaintiff has not had an opportunity to examine the appellant and his claim concerns alleged conversations with the appellant’s employees, summary judgment is particularly inappropriate. Damiani, J. P., Titone, Mangano and Gibbons, JJ., concur.