Thrifty Outlet Stores, Inc. v. Erwill Realty Corp.

283 A.D. 941, 131 N.Y.S.2d 131, 1954 N.Y. App. Div. LEXIS 5851

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 1954
• Status: Published

Opinion

The complaint is wholly lacking in statements of facts to support the conelusory allegations of fraud. The complaint, therefore, should be dismissed on the motion addressed to its sufficiency. It would hardly be possible to say whether nonstated grounds of complaint are res judicata by reason of the numerous prior dispossess proceedings, but the failure of plaintiff to assert any present grounds for complaint as defenses or counterclaims in those proceedings and the belated institution of this action strongly indicate that there is no latent support behind the patent insufficiency of the complaint. Therefore, the dismissal is without leave to amend. Order unanimously reversed, with $20 costs and disbursements to the appellants and the motion granted, and judgment is directed to be entered in favor of the defendants dismissing the complaint herein, with costs. Present — Peck, P. J., Cohn, Breitel, Bastow and Botein, JJ.