Moss v. Moche

160 A.D.2d 785, 555 N.Y.S.2d 613, 1990 N.Y. App. Div. LEXIS 4196

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 1990
• Status: Published

Opinion

an action to recover damages for malpractice, breach of fiduciary duty and fraud, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Kutner, J.), entered September 21, 1988, which granted the motion of the defendant Allen C. Moche to dismiss the complaint as against him pursuant to CPLR 3211 (a) (7) for failure to state a cause of action.

Ordered that the order is affirmed, with costs.

We agree with the Supreme Court’s conclusion that the allegations of the complaint fail to set forth the requisite elements of fraud, malpractice and breach of fiduciary duty (see, CPLR 3013; see, e.g., Barclay Arms v Barclay Arms Assocs., 74 NY2d 644; Zambito v Ryan, 125 AD2d 462; Glatzer v Scappatura, 99 AD2d 505). Moreover, the claims of fraud and breach of fiduciary duty have not been pleaded with the factual detail required by statute (see, CPLR 3016 [b]; see, e.g., Elsky v KM Ins. Brokers, 139 AD2d 691; Appel v Ford Motor Co., Ill AD2d 731; Gould v Schroder Bank & Trust Co., 78 AD2d 870). Accordingly, the dismissal of the complaint pursuant to CPLR 3211 (a) (7) was appropriate.

Additionally, inasmuch as the plaintiffs did not request leave to replead, did not submit evidence demonstrating the merit of their claims, and did not submit a proposed amended pleading, they are not entitled to permission to serve an amended complaint (see, CPLR 3211 [e]; Bardere v Zafir, 63 NY2d 850; Zigabarra v Falk, 143 AD2d 901; Scaccia v Mack Trucks, 83 AD2d 903). Brown, J. P., Eiber, Sullivan and Harwood, JJ., concur.