Seidenfeld v. Kobi Polyethylene Bag Mfg. Co.

Appellate Division of the Supreme Court of New York

Seidenfeld v. Kobi Polyethylene Bag Mfg. Co.

46 A.D.2d 758, 362 N.Y.S.2d 822, 1974 N.Y. App. Div. LEXIS 3596

Appellate Division of the Supreme Court of the State of New York·Decided November 19, 1974·Published

Opinion

Order, Supreme Court, New York County, entered December 11, 1973, unanimously reversed, on the law, defendants-appellants’ motion for summary judgment dismissing the complaint granted, without prejudice as hereinafter set forth, and plaintiff-respondent’s motion to amend his complaint_denied. Appellants shall recover of respondent $60 costs and disbursements of this appeal. The complaint, said to be based on fraud, when put to the test of summary judgment, is not supported' by the requisite proofs. This would be so even if the complaint were to be regarded as one for breach of contract. It may be that plaintiff is in a position to supply the deficiencies in proof and, accordingly, this disposition is without prejudice to application at Special Term for leave to amend the complaint, accompanied by evidence by affidavit in support of the proposed amendment. (See Cushman é Wakefield v. John David, Inc., 25 A D 2d 133.) Concur — McGivern, P. J., Markewich, Nunez, Lupiano and Yesawich, JJ.

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Order, Supreme Court, New York County, entered December 11, 1973, unanimously reversed, on the law, defendants-appellants’ motion for summary judgment dismissing the complaint granted, without prejudice as hereinafter set forth, and plaintiff-respondent’s motion to amend his complaint_denied. Appellants shall recover of respondent $60 costs and disbursements of this appeal. The complaint, said to be based on fraud, when put to the test of summary judgment, is not supported' by the requisite proofs. This would be so even if the complaint were to be regarded as one for breach of contract. It may be that plaintiff is in a position to supply the deficiencies in proof and, accordingly, this disposition is without prejudice to application at Special Term for leave to amend the complaint, accompanied by evidence by affidavit in support of the proposed amendment. (See Cushman é Wakefield v. John David, Inc., 25 A D 2d 133.) Concur — McGivern, P. J., Markewich, Nunez, Lupiano and Yesawich, JJ.

Seidenfeld v. Kobi Polyethylene Bag Mfg. Co., 46 A.D.2d 758, 362 N.Y.S.2d 822, 1974 N.Y. App. Div. LEXIS 3596 (N.Y. Ct. App. 1974).

Pincite

46 A.D.2d 758 (Seidenfeld v. Kobi Polyethylene Bag Mfg. Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.