RGW Realty Associates v. Martone

163 A.D.2d 598, 559 N.Y.S.2d 36, 1990 N.Y. App. Div. LEXIS 10137

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 30, 1990
• Status: Published

Opinion

In an action, inter alia, for an accounting, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Molloy, J.), entered April 6, 1989, as granted those branches of the defendants’ motion which were to dismiss the second and ninth causes of action asserted in the complaint and denied the plaintiff’s cross motion for leave to amend the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The complaint in this case asserts 10 causes of action. The Supreme Court, on motion of the defendant, dismissed five of them. On this appeal the plaintiff contests only the dismissal of the second and ninth causes of action for legal insufficiency, and the denial of its cross motion for leave to amend. Those causes of action were properly dismissed and leave to amend was properly denied for reasons stated by Justice Molloy at the Supreme Court. We note, however, that to the extent that the Supreme Court held that the second cause of action was legally insufficient for failure to reallege or refer to prior allegations of the complaint, CPLR 3014 obviated the necessity to do so. CPLR 3014 states in relevant part: "Prior statements in a pleading shall be deemed repeated or adopted subsequently in the same pleading whenever express repetition or adoption is unnecessary for a clear presentation of the subsequent matters.” Nevertheless, the second cause of action, sounding in fraud, was properly dismissed for failure to plead the circumstances constituting the wrong with specificity (see, CPLR 3016 [b]). Brown, J. P., Lawrence, Kooper and O’Brien, JJ., concur.