Krusch v. Affordable Housing L. L. C.

Appellate Division of the Supreme Court of New York

Krusch v. Affordable Housing L. L. C.

266 A.D.2d 122, 698 N.Y.S.2d 674, 1999 N.Y. App. Div. LEXIS 12102

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

DecidedNovember 23, 1999

StatusPublished

Cited by1 cases

This text of 266 A.D.2d 122 (Krusch v. Affordable Housing L. L. C.) 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

Krusch v. Affordable Housing L. L. C., 266 A.D.2d 122, 698 N.Y.S.2d 674, 1999 N.Y. App. Div. LEXIS 12102 (N.Y. Ct. App. 1999).

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Opinion

—Order, Supreme Court, New York County (Barry Cozier, J.), entered April 6, 1999, which, to the extent appealed and cross-appealed from as limited by the briefs, denied that branch of defendants’ motion pursuant to CPLR 3211 (a) (7) seeking dismissal of plaintiffs’ first cause of action for fraud, and granted that branch of the same motion seeking dismissal of plaintiffs’ second cause of action alleging champerty, unanimously affirmed, without costs.

Under the circumstances at bar, where the particulars of the alleged wrongdoing are peculiarly within defendants’ knowledge, plaintiffs’ complaint and supporting affidavit sufficiently stated a cause of action against defendants for fraud (see, Federal Ins. Co. v Specialty Paper Box Co., 222 AD2d 254). Plaintiffs’ champerty cause of action, however, even if permissibly asserted as an affirmative claim for damages, and not, as it is ordinarily, as an affirmative defense, was properly dismissed, since plaintiffs do not allege that the challenged notes were acquired primarily for the purpose of bringing an action thereon. We note in this last connection that defendants did not immediately sue upon the subject promissory notes but instead afforded plaintiffs an opportunity to cure their defaults (see, 1015 Gerard Realty Corp. v A & S Improvements Corp., 91 AD2d 927). Concur — Williams, J. P., Rubin, Saxe and Friedman, JJ.

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—Order, Supreme Court, New York County (Barry Cozier, J.), entered April 6, 1999, which, to the extent appealed and cross-appealed from as limited by the briefs, denied that branch of defendants’ motion pursuant to CPLR 3211 (a) (7) seeking dismissal of plaintiffs’ first cause of action for fraud, and granted that branch of the same motion seeking dismissal of plaintiffs’ second cause of action alleging champerty, unanimously affirmed, without costs.

Under the circumstances at bar, where the particulars of the alleged wrongdoing are peculiarly within defendants’ knowledge, plaintiffs’ complaint and supporting affidavit sufficiently stated a cause of action against defendants for fraud (see, Federal Ins. Co. v Specialty Paper Box Co., 222 AD2d 254). Plaintiffs’ champerty cause of action, however, even if permissibly asserted as an affirmative claim for damages, and not, as it is ordinarily, as an affirmative defense, was properly dismissed, since plaintiffs do not allege that the challenged notes were acquired primarily for the purpose of bringing an action thereon. We note in this last connection that defendants did not immediately sue upon the subject promissory notes but instead afforded plaintiffs an opportunity to cure their defaults (see, 1015 Gerard Realty Corp. v A & S Improvements Corp., 91 AD2d 927). Concur — Williams, J. P., Rubin, Saxe and Friedman, JJ.

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Bluebook (online)

266 A.D.2d 122, 698 N.Y.S.2d 674, 1999 N.Y. App. Div. LEXIS 12102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krusch-v-affordable-housing-l-l-c-nyappdiv-1999.

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