Elie v. Marathon REO Management, LLC

Appellate Division of the Supreme Court of New York

Elie v. Marathon REO Management, LLC

119 A.D.3d 890, 989 N.Y.S.2d 863

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

DecidedJuly 30, 2014

Docket2013-02400

StatusPublished

Cited by1 cases

This text of 119 A.D.3d 890 (Elie v. Marathon REO Management, LLC) 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

Elie v. Marathon REO Management, LLC, 119 A.D.3d 890, 989 N.Y.S.2d 863 (N.Y. Ct. App. 2014).

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Opinion

*891 In an action to recover damages for fraud, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated March 4, 2013, as granted the defendant’s cross motion pursuant to CPLR 3211 (a) to dismiss the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court granted the defendant’s cross motion pursuant to CPLR 3211 (a) to dismiss the complaint on the ground the venue chosen by the plaintiffs was improper. We affirm, but on a ground different from the one asserted by the defendant in its cross motion, namely, that the complaint fails to state a cause of action (see CPLR 3211 [a] [7]). “ ‘Improper venue is not a jurisdictional defect requiring dismissal of the action’ ” (Lowenbraun v McKeon, 98 AD3d 655, 656 [2012], quoting Chira v Global Med. Review, 160 Misc 2d 368, 369 [Sup Ct, Rockland County 1994]). Nonetheless, to the extent that the complaint seeks to recover damages for fraud, the complaint fails to state a cause of action, since it does not specify any particular misrepresentation of material fact made to the plaintiffs (see CPLR 3016 [b]; 3211 [a] [7]; Small v Lorillard Tobacco Co., 94 NY2d 43, 57 [1999]; Greenberg v Blake, 117 AD3d 683 [2014]).

The parties’ remaining contentions either are without merit or need not be reached in light of our determination.

Skelos, J.R, Chambers, Lott and Duffy, JJ., concur.

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*891 In an action to recover damages for fraud, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated March 4, 2013, as granted the defendant’s cross motion pursuant to CPLR 3211 (a) to dismiss the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court granted the defendant’s cross motion pursuant to CPLR 3211 (a) to dismiss the complaint on the ground the venue chosen by the plaintiffs was improper. We affirm, but on a ground different from the one asserted by the defendant in its cross motion, namely, that the complaint fails to state a cause of action (see CPLR 3211 [a] [7]). “ ‘Improper venue is not a jurisdictional defect requiring dismissal of the action’ ” (Lowenbraun v McKeon, 98 AD3d 655, 656 [2012], quoting Chira v Global Med. Review, 160 Misc 2d 368, 369 [Sup Ct, Rockland County 1994]). Nonetheless, to the extent that the complaint seeks to recover damages for fraud, the complaint fails to state a cause of action, since it does not specify any particular misrepresentation of material fact made to the plaintiffs (see CPLR 3016 [b]; 3211 [a] [7]; Small v Lorillard Tobacco Co., 94 NY2d 43, 57 [1999]; Greenberg v Blake, 117 AD3d 683 [2014]).

The parties’ remaining contentions either are without merit or need not be reached in light of our determination.

Skelos, J.R, Chambers, Lott and Duffy, JJ., concur.

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Bluebook (online)

119 A.D.3d 890, 989 N.Y.S.2d 863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elie-v-marathon-reo-management-llc-nyappdiv-2014.

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