M. B. L. Distributors, Inc. v. Kahn

58 A.D.2d 806, 396 N.Y.S.2d 256, 1977 N.Y. App. Div. LEXIS 12969

Opinion

In an action, inter alia, to recover damages for fraud, the appeal is from an order of the Supreme Court, Kings County, dated November 16, 1976, which denied appellants’ motion to dismiss the second cause of action of the complaint for failure to state a cause of action (see CPLR 3211, subd [a], par 7). Order reversed, on the law, with $50 costs and disbursements, and motion to dismiss the second cause of action as against appellants granted, with leave to plaintiff to serve an amended complaint (repleading the said cause of action). Plaintiff’s time to serve the amended complaint is extended until 20 days after service upon it of a copy of the order to be entered hereon, with notice of entry thereof. In our opinion the second cause of action (1) fails to plead reliance by plaintiff-respondent, (2) fails to plead knowledge by appellants of the falsity of their alleged representations, and (3) fails to comply with the requirement of particularity as set forth in CPLR 3016 (subd [b]). The second cause of action is ambiguous and it would require extreme speculation to sustain it as presently pleaded (see Brackett v Griswold, 112 NY 454; Brickner v Linden City Realty, 23 AD2d 560; Meltzer v Klein, 29 AD2d 548). Latham, J. P., Rabin, Titone and O’Connor, JJ., concur.