Kelly v. Maniscalco

21 A.D.3d 996, 800 N.Y.S.2d 847

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 19, 2005
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of fiduciary duty and fraud, the defendants Frances M. Forgione and Forgione Financial Services, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (M. Garson, J.), dated September 17, 2003, as denied those branches of their motion which were pursuant to CPLR 3211 to dismiss the plaintiffs’ first, second, and sixth causes of action of the amended complaint insofar as asserted against them.

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

Contrary to the appellants’ contention, the Supreme Court properly denied that branch of their motion which was to dismiss so much of an amended complaint as alleged breach of fiduciary duty as against them. The court properly found, inter alia, that such allegations related back to the original complaint and, therefore, were timely interposed (see CPLR 203 [f]).

The plaintiffs’ allegations of fraud as against the appellants were adequate and were stated with sufficient particularity (see CPLR 3016 [b]; Houbigant, Inc. v Deloitte & Touche, 303 AD2d 92 [2003]).

The appellants’ remaining contentions are without merit (see Lavin v Kaufman, Greenhut, Lebowitz & Forman, 226 AD2d 107 [1996]). Adams, J.P., Ritter, Goldstein and Fisher, JJ., concur.