Wittie v. Texas Gulf, Inc.

115 A.D.2d 246, 495 N.Y.S.2d 862, 1985 N.Y. App. Div. LEXIS 54493

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1985
• Status: Published

Opinion

Order unanimously affirmed, with costs. Memorandum: Defendants Alec Wildenstein, Wildenstein and Co., Inc. and Jet Air, Inc. appeal from an order denying their motions to dismiss plaintiffs complaint for failure to state a cause of action and lack of personal jurisdiction.

We agree with Special Term that the complaint, given every favorable inference (see, Rovello v Orofino Realty Co., 40 NY2d 633; Terry v County of Orleans, 72 AD2d 925), sufficiently states a cause of action for breach of contract against defendants Wildenstein and Co., Inc. and Jet Air, Inc. (see, Guggenheimer v Ginzburg, 43 NY2d 268, 275; Romano v Key Bank, 90 AD2d 679, 680-681; City of New York v Bettigole, 57 AD2d 797, 798). We note that since defendant Alec Wildenstein had not been served, his motion was properly denied as premature. Moreover, at oral argument, counsel acknowledged that defendant Jet Air, Inc. has been properly served. (Appeal from order of Supreme Court, Allegany County, Sprague, J.—dismiss complaint.) Present—Hancock, Jr., J. P., Doerr, Green, O’Donnell and Schnepp, JJ.