Perla v. Marine Midland Realty Corp.

61 A.D.2d 837, 402 N.Y.S.2d 425, 1978 N.Y. App. Div. LEXIS 10303

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 27, 1978
• Status: Published

Opinion

In an action, inter alia, for specific performance of a contract, in which respondent has asserted a counterclaim against the plaintiffs, plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County, dated July 29, 1977, as, upon reargument, denied plaintiffs’ motion to dismiss respondent’s counterclaim. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and motion to dismiss respondent’s counterclaim granted. Respondent has counterclaimed against plaintiffs-appellants on theories of fraud, conspiracy and tortious interference with its business relationships with third parties. In opposition to plaintiffs’ motion for summary judgment and in support of its confusing and ambiguous pleadings, respondent has not given the kind of notice contemplated by CPLR 3013, much less the detailed statement of circumstances constituting the wrong required by CPLR 3016 (subd [b]). (See Reno v Bull, 226 NY 546; Lanzi v Brooks, 54 AD2d 1057.) Respondent has presented nothing in its pleadings and supporting affidavits except bare allegations of fraud; its failure to comply with the pleading requirements of CPLR 3013 and 3016 (subd [b]) has prejudiced the plaintiffs (see Meltzer v Klein, 29 AD2d 548). Respondent has already had ample opportunity to discover the facts. It would be futile at this stage to allow it to correct its pleadings pursuant to CPLR 3024 as there is no reason to believe that it could buttress its pleadings with facts sufficient to make out a prima facie case. The motion for summary judgment should therefore have been granted (see Downey v General Foods Corp., 31 NY2d 56). Hopkins, J. P., Latham, Damiani and Titone, JJ., concur.