Quiroz v. Tsoulos

Appellate Division of the Supreme Court of New York

Quiroz v. Tsoulos

303 A.D.2d 331, 755 N.Y.S.2d 849, 2003 N.Y. App. Div. LEXIS 3255

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 27, 2003

StatusPublished

This text of 303 A.D.2d 331 (Quiroz v. Tsoulos) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Quiroz v. Tsoulos, 303 A.D.2d 331, 755 N.Y.S.2d 849, 2003 N.Y. App. Div. LEXIS 3255 (N.Y. Ct. App. 2003).

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Opinion

—Judgment, Supreme Court, New York County (Richard Lowe III, J.), entered May 8, 2002, dismissing the complaint, and bringing up for review an order, same court and Justice, entered April 17, 2002, which denied plaintiffs-appellants’ motion for injunctive relief and granted defendants’ cross motion to dismiss the complaint for failure to state a cause of action, unanimously reversed, on the law, without costs, the judgment vacated, defendants’ motion with respect to plaintiffs’ causes sounding in breach of contract denied and the complaint insofar as it sounds in breach of contract reinstated. Appeal from the order entered April 17, 2002 unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.

The affidavits submitted by plaintiff provide sufficient indication that the alleged agreements were reasonably certain as to their material terms to sustain plaintiffs’ causes for breach of contract as against defendants’ motion to dismiss for failure to state a cause of action (see Leon v Martinez, 84 NY2d 83 [1994]). Dismissal of plaintiffs’ negligence and/or fraud claim, however, was proper since the complaint and supporting submissions provide no basis to differentiate that claim from plaintiffs’ claims for breach of contract (see id.; and see Orix Credit Alliance v R.E. Hable Co., 256 AD2d 114 [1998]).

Plaintiffs, having made no showing of irreparable harm, were properly denied injunctive relief (see Greater Miami Baseball Club Ltd. Partnership v National League of Professional Baseball Clubs, 193 AD2d 513 [1993], lv dismissed in part and denied in part 82 NY2d 800 [1993]). Concur — Tom, J.P., Mazzarelli, Sullivan, Williams and Gonzalez, JJ.

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—Judgment, Supreme Court, New York County (Richard Lowe III, J.), entered May 8, 2002, dismissing the complaint, and bringing up for review an order, same court and Justice, entered April 17, 2002, which denied plaintiffs-appellants’ motion for injunctive relief and granted defendants’ cross motion to dismiss the complaint for failure to state a cause of action, unanimously reversed, on the law, without costs, the judgment vacated, defendants’ motion with respect to plaintiffs’ causes sounding in breach of contract denied and the complaint insofar as it sounds in breach of contract reinstated. Appeal from the order entered April 17, 2002 unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.

The affidavits submitted by plaintiff provide sufficient indication that the alleged agreements were reasonably certain as to their material terms to sustain plaintiffs’ causes for breach of contract as against defendants’ motion to dismiss for failure to state a cause of action (see Leon v Martinez, 84 NY2d 83 [1994]). Dismissal of plaintiffs’ negligence and/or fraud claim, however, was proper since the complaint and supporting submissions provide no basis to differentiate that claim from plaintiffs’ claims for breach of contract (see id.; and see Orix Credit Alliance v R.E. Hable Co., 256 AD2d 114 [1998]).

Plaintiffs, having made no showing of irreparable harm, were properly denied injunctive relief (see Greater Miami Baseball Club Ltd. Partnership v National League of Professional Baseball Clubs, 193 AD2d 513 [1993], lv dismissed in part and denied in part 82 NY2d 800 [1993]). Concur — Tom, J.P., Mazzarelli, Sullivan, Williams and Gonzalez, JJ.

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Bluebook (online)

303 A.D.2d 331, 755 N.Y.S.2d 849, 2003 N.Y. App. Div. LEXIS 3255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quiroz-v-tsoulos-nyappdiv-2003.

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