Esack v. Cook

Appellate Division of the Supreme Court of New York

Esack v. Cook

33 A.D.2d 910, 307 N.Y.S.2d 489, 1970 N.Y. App. Div. LEXIS 5780

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

DecidedJanuary 12, 1970

StatusPublished

This text of 33 A.D.2d 910 (Esack v. Cook) 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

Esack v. Cook, 33 A.D.2d 910, 307 N.Y.S.2d 489, 1970 N.Y. App. Div. LEXIS 5780 (N.Y. Ct. App. 1970).

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Opinion

In an action to recover damages inter alia for breach of contract, plaintiff appeals - from an order of the Supreme Court, Westchester County, dated January 24, 1969, which granted respondents’ separate motions to dismiss the amended complaint as to them on the ground that it fails to state a cause of action as to them (CBLR 3211, subd. [a], par. 7). Order modified, on the law, by inserting in the first decretal paragraph thereof, after the words “granted in all respects,” the following: “as to defendant Norman Cooper and denied in all respects as to defendant Ernest W. Levey; ” and by striking out the second ordering paragraph, which directed dismissal of the first, second and third causes of action in the amended complaint, these being all the causes of action therein against Ernest W. Levey. As so modified, order affirmed, with $10 costs and disbursements to appellant against respondent Ernest W. Levey and with $10 costs and disbursements to respondent Norman Cooper against appellant. In our opinion, the first cause of action in the amended complaint, which is directed against respondent Levey, is sufficient (Glens Falls Ins. Co. v. Reynolds, 3 A D 2d 686; Lindner v. Eichel, 34 Misc 2d 840, 844; cf. Robins v. Finestone, 308 N. Y. 543). It was .therefore error to dismiss the entire complaint as to that respondent (Griefer v. Newman, 22 A D 2d 696). Beldoek, B. J., Christ, Munder, Martuseello and Kleinfeld, JJ., concur.

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In an action to recover damages inter alia for breach of contract, plaintiff appeals - from an order of the Supreme Court, Westchester County, dated January 24, 1969, which granted respondents’ separate motions to dismiss the amended complaint as to them on the ground that it fails to state a cause of action as to them (CBLR 3211, subd. [a], par. 7). Order modified, on the law, by inserting in the first decretal paragraph thereof, after the words “granted in all respects,” the following: “as to defendant Norman Cooper and denied in all respects as to defendant Ernest W. Levey; ” and by striking out the second ordering paragraph, which directed dismissal of the first, second and third causes of action in the amended complaint, these being all the causes of action therein against Ernest W. Levey. As so modified, order affirmed, with $10 costs and disbursements to appellant against respondent Ernest W. Levey and with $10 costs and disbursements to respondent Norman Cooper against appellant. In our opinion, the first cause of action in the amended complaint, which is directed against respondent Levey, is sufficient (Glens Falls Ins. Co. v. Reynolds, 3 A D 2d 686; Lindner v. Eichel, 34 Misc 2d 840, 844; cf. Robins v. Finestone, 308 N. Y. 543). It was .therefore error to dismiss the entire complaint as to that respondent (Griefer v. Newman, 22 A D 2d 696). Beldoek, B. J., Christ, Munder, Martuseello and Kleinfeld, JJ., concur.

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Bluebook (online)

33 A.D.2d 910, 307 N.Y.S.2d 489, 1970 N.Y. App. Div. LEXIS 5780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/esack-v-cook-nyappdiv-1970.

Opinion

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