Feldesman v. Lacher

212 A.D.2d 487, 623 N.Y.S.2d 210, 1995 N.Y. App. Div. LEXIS 2317

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1995
• Status: Published

Opinion

—Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered October 18, 1993, which, inter alia, granted defendant’s motion to dismiss the first five causes of action for failure to state a cause of action, with leave to resubmit a proposed amended fifth cause of action, unanimously affirmed, without costs.

The first four causes of action in the complaint, which sought to recover purported overpayments made to defendant, who served as "of counsel” to plaintiff’s predecessor firm, three years after he resigned, were properly dismissed since plaintiff failed to establish the existence of an enforceable contract upon which such causes of action were predicated. While plaintiff’s allegations, as supplemented by its additional submissions, are to be accorded their most favorable intendment (Arrington v New York Times Co., 55 NY2d 433, 442), where, as here, the allegations consist of bare legal conclusions as well as factual claims which are either inherently incredible or flatly contradicted by documentary evidence, they are not entitled to such consideration (Caniglia v Chicago Tribune-New York News Syndicate, 204 AD2d 233, 233-234).

The fifth cause of action for fraud was also properly dismissed, with leave to replead upon a proper factual showing, since the allegations contained therein failed to state to whom defendant’s purported representations were made, when they were made and the clients to whom they referred (CPLR 3016 [b]; see, Bramex Assocs. v CBI Agencies, 149 AD2d 383). Concur—Sullivan, J. P., Rosenberger, Wallach and Rubin, JJ.