Sheepshead Cycle Shop, Inc. v. Cuevas Bicycles, Ltd.

Appellate Division of the Supreme Court of New York

Sheepshead Cycle Shop, Inc. v. Cuevas Bicycles, Ltd.

62 A.D.2d 1052, 404 N.Y.S.2d 132, 1978 N.Y. App. Div. LEXIS 11138

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

DecidedApril 24, 1978

StatusPublished

This text of 62 A.D.2d 1052 (Sheepshead Cycle Shop, Inc. v. Cuevas Bicycles, Ltd.) 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.

Bluebook

Sheepshead Cycle Shop, Inc. v. Cuevas Bicycles, Ltd., 62 A.D.2d 1052, 404 N.Y.S.2d 132, 1978 N.Y. App. Div. LEXIS 11138 (N.Y. Ct. App. 1978).

Pincite

Opinion

In an action to recover damages for fraud, defendant Angelo Finocchiaro appeals from an order of the Supreme Court, Kings County, dated June 10, 1977, which denied his motion to dismiss the complaint for failure to state a cause of action. Order affirmed, with $50 costs and disbursements. Plaintiff-respondent’s allegations are sufficient to constitute a cause of action to recover damages for fraud and to apprise appellant of what is to be established at the trial. The five elements that constitute a cause of action for fraud are pleaded (see Ochs v Woods, 221 NY 335, 338; accord Channel Master Corp. v Aluminum Ltd. Sales, 4 NY2d 403) and they are sufficiently particularized to give appellant notice of the transactions or occurrences intended to be proved (see CPLR 3013; 3016, subd [b]; Foley v D’Agostino, 21 AD2d 60, 64). They are not the "bare allegations of fraud” that have been held to be insufficient to withstand a motion to dismiss a pleading (see Meltzer v Klein, 29 AD2d 548). Whether plaintiff can establish the allegations of its complaint is "necessarily reserved for trial” (see Channel Master Corp. v Aluminum Ltd. Sales, supra, p 408; cf. Brady & Co. v Concrete Plank Co., 56 AD2d 591). Latham, J. P., Rabin, Gulotta and Cohalan, JJ., concur.

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In an action to recover damages for fraud, defendant Angelo Finocchiaro appeals from an order of the Supreme Court, Kings County, dated June 10, 1977, which denied his motion to dismiss the complaint for failure to state a cause of action. Order affirmed, with $50 costs and disbursements. Plaintiff-respondent’s allegations are sufficient to constitute a cause of action to recover damages for fraud and to apprise appellant of what is to be established at the trial. The five elements that constitute a cause of action for fraud are pleaded (see Ochs v Woods, 221 NY 335, 338; accord Channel Master Corp. v Aluminum Ltd. Sales, 4 NY2d 403) and they are sufficiently particularized to give appellant notice of the transactions or occurrences intended to be proved (see CPLR 3013; 3016, subd [b]; Foley v D’Agostino, 21 AD2d 60, 64). They are not the "bare allegations of fraud” that have been held to be insufficient to withstand a motion to dismiss a pleading (see Meltzer v Klein, 29 AD2d 548). Whether plaintiff can establish the allegations of its complaint is "necessarily reserved for trial” (see Channel Master Corp. v Aluminum Ltd. Sales, supra, p 408; cf. Brady & Co. v Concrete Plank Co., 56 AD2d 591). Latham, J. P., Rabin, Gulotta and Cohalan, JJ., concur.

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Bluebook (online)

62 A.D.2d 1052, 404 N.Y.S.2d 132, 1978 N.Y. App. Div. LEXIS 11138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheepshead-cycle-shop-inc-v-cuevas-bicycles-ltd-nyappdiv-1978.

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