Sabarese v. New York Racing Ass'n

147 A.D.2d 467, 538 N.Y.S.2d 477, 1989 N.Y. App. Div. LEXIS 1469

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 1989
• Status: Published

Opinion

— In an action to recover damages for negligence and negligent misrepresentation, the plaintiff appeals (1) from an order of the Supreme Court, Queens County (Leviss, J.), dated May 20, 1987, which granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7), and (2), as limited by his brief, from so much of an order of the same court, dated August 5, 1987, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order dated May 20, 1987, is dismissed, as that order was superseded by the order dated August 5, 1987, made upon reargument; and it is further,

Ordered that the order dated August 5, 1987, is affirmed insofar as appealed from; and it is further,

Ordered that the defendant is awarded one bill of costs.

The plaintiff’s causes of action to recover damages for negligence and negligent misrepresentation were properly dismissed. The allegations in the complaint fail to set forth the necessary elements of the causes of action (see, International Prods. Co. v Erie R. R. Co., 244 NY 331, cert denied 275 US 527; Black v Chittenden, 69 NY2d 665; Hanlon v McFadden Publs., 302 NY 502). Bracken, J. P., Lawrence, Kunzeman and Hooper, JJ., concur.