Sanders, Architects, P. C. v. Clifton Country Mall, Inc.

112 A.D.2d 556, 491 N.Y.S.2d 78, 1985 N.Y. App. Div. LEXIS 55912

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 11, 1985
• Status: Published

Opinion

Kane, J. P.

Appeal from an order of the Supreme Court at Special Term (Hughes, J.), entered December 12, 1983 in Albany County, which granted defendants’ motion to dismiss the complaint and denied plaintiff’s cross motion for, inter alia, permission to amend its summons and complaint.

In 1979, "Harris A. Sanders, Architects” entered into a contract with "Clifton Country Mall Limited Partnership” to provide architectural services for an addition to the Clifton Country Mall in Saratoga County. In May 1983, a professional corporation entitled "Harris A. Sanders, Architects, P. C.” commenced the instant action against "Clifton Country Mall, Inc., Marshall Davis and Myron Hunt”. The complaint alleges breach of the above-referenced contract and that defendants fraudulently induced plaintiff to enter into the contract.

Defendants, in pertinent part, moved to dismiss upon the grounds that plaintiff lacked capacity to sue and that, since none of the parties to the lawsuit were parties to the contract, the complaint failed to state a cause of action. Plaintiff cross-moved for, inter alia, permission to amend its summons and complaint to add the correct parties. Special Term denied the cross motion and granted defendants’ motion, without prejudice to an action being brought by the correct, proper party. This appeal ensued.

A review of the record reveals that Special Term did not err in granting defendants’ motion without prejudice to a new action for the same relief commenced by the proper party against the appropriate defendants (cf. Monday Props, v A-l Plumbing & Heating Co., 25 Misc 2d 625). Accordingly, the order must be affirmed.

Order affirmed, with costs. Kane, J. P., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.