Griefer v. Newman

22 A.D.2d 696, 253 N.Y.S.2d 791, 1964 N.Y. App. Div. LEXIS 3076

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 19, 1964
• Status: Published

Opinion

In an action, in which the complaint alleges three separate causes of action: (1) to recover damages for breach of contract; (2) to recover damages for fraud; and (3) to declare that a certain restrictive covenant is null and void, the plaintiff appeals from an order of the Supreme Court, Queens County, dated August 14, 1963, which granted the individual and corporate defendants’ motions to dismiss the complaint for patent insufficiency, with leave to replead. Order reversed, ¡with $10 costs and disbursements, and motions to dismiss the complaint denied. The time of the defendants to answer the complaint is extended until 30 days after entry of the order hereon. In our opinion, the first cause of action sufficiently pleads a cause of action to recover damages for breach of contract, and the second cause of action sufficiently pleads a cause of action to recover damages for fraud. Since the motions to dismiss for insufficiency were addressed to the -complaint as a whole and not ¡to each cause of action therein, the motions must be denied without considering the legal sufficiency of the third cause of action (Stoehrer v. Sattler, 18 A D 2d 683). Beldock, P. J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.