Marcucilli v. Alicon Corp.

41 A.D.2d 932, 343 N.Y.S.2d 367, 1973 N.Y. App. Div. LEXIS 4529

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1973
• Status: Published

Opinion

In an action to recover damages for fraud and conspiracy, plaintiffs appeal from two orders of the Supreme Court, Westchester' County, as follows: (1) from one dated June 1, 1971, which, on separate motions by defendants,, dismissed the complaint for failure to state a cause of action, and, (2) as limited by plaintiffs’ brief, from so much of the other order, dated September 14, 1971, as, upon reargument, adhered to the original decision. Appeal from the order dated June 1, 1971 dismissed. That order was superseded by the order dated September 14, 1971. Order dated September 14, 1971 modified by striking therefrom the second decretal paragraph and substituting therefor the following: “Ordered, that upon reargument defendants’ motions to dismiss the complaint for failure to state a cause of action are granted, with leave to appellants to serve an amended complaint.” As so modified, order affirmed insofar as appealed from. The time within which appellants may serve an amended complaint is extended until 20 days after entry of the order to be entered hereon. One bill of $20 costs and disbursements is awarded jointly to respondents appearing separately and filing separate briefs, to cover the appeals from both ordórs. We are of the opinion that neither collateral estoppel nor general release has any application to plaintiffs’ cause of action. Nevertheless, the complaint is legally insufficient for failure to state in detail the circumstances constituting the wrong (CPLR 3016, subd. [b]). Munder, Acting P. J., Martuscello, Latham, Gulotta and Brennan, JJ., concur.