Edmar Creations, Inc. v. Instrument System Corp.

74 A.D.2d 632, 425 N.Y.S.2d 163, 1980 N.Y. App. Div. LEXIS 10304

Opinion

In an action, inter alia, to recover damages for fraud, the plaintiffs appeal from an order of the Supreme Court, Nassau County, dated March 7, 1978, which granted defendants’ motion to dismiss the complaint. The appeal brings up for review so much of a further order of the same court, entered May 25, 1978, as, upon granting plaintiffs’ motion to reargue, adhered to its original determination. All appellants except Edmar Creations, Inc., have abandoned their appeal. Appeal from order dated March 7, 1978, dismissed as academic. Said order was superseded by the order entered May 25, 1978. Upon appeal by plaintiff Edmar Creations, Inc., order entered May 25, 1978 affirmed insofar as reviewed. The defendants are awarded one bill of costs payable by plaintiff Edmar Creations, Inc. Plaintiff Edmar Creations, Inc.’s own affidavits conclusively establish that it has no cause of action (see Rovello v OroSno Realty Co., 40 NY2d 633, 636). Under the circumstances, as they are stated by Edmar, it unreasonably failed to investigate the truth of the alleged misrepresentation. Mangano, J. P., Rabin, Gulotta and Cohalan, JJ., concur.