Lambert v. Marks

96 A.D.2d 578, 464 N.Y.S.2d 1018, 1983 N.Y. App. Div. LEXIS 19111

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 25, 1983
• Status: Published

Opinion

— In an action to recover damages for breach of contract, plaintiffs appeal from an order of the Supreme Court, Westchester County (Cerrato, J.), entered April 15, 1982, which granted the motion of defendant Edward Marks to dismiss the complaint as against him pursuant to CPLR 3211 (subd [a], par 7) for failure to state a cause of action against him. Order modified, as an exercise of discretion, by adding thereto a provision granting plaintiffs leave to replead their complaint against defendant Marks. As so modified, order affirmed, without costs or disbursements. Plaintiffs may serve an amended complaint within 30 days after service upon them of a copy of the order to be made hereon, with notice of entry. Although Special Term correctly concluded that the complaint failed to state a cause of action against defendant Marks, the record indicates that plaintiffs may possess a meritorious cause of action against said defendant. Accordingly, the interests of justice require that plaintiffs be afforded an opportunity to replead their complaint against him (see Piffath v Esposito, 58 AD2d 577). Gibbons, J. P., Thompson, Gulotta and Boyers, JJ., concur.