Wolfson v. Ubile

78 A.D.2d 612, 432 N.Y.S.2d 393, 1980 N.Y. App. Div. LEXIS 13065

Opinions

Order, Supreme Court, New York County, entered April 5, 1978, affirmed, without costs and without disbursements. Our Presiding Justice has stated, in a well-articulated partial dissent, the reasons why, certainly at this early juncture of the case, the complaint should be sustained insofar as common-law fraud is alleged. However, we do not agree either with him or Justice Silverman that the two causes based on State and Federal statutes should be dismissed. As Special Term correctly observed in exercising discretion to deny the motion to dismiss the entire complaint, "Defendants contend that the complaint cannot be sustained on the basis of any of the three theories set forth. If, however, the complaint states a cause of action under any of these theories it must be sustained.” (In this connection, see 4 Weinstein-Korn-Miller, NY Civ Prac, par 3211.38; Siegel, New York Practice, § 265.) Nor is this to say, before issue is joined by service of answer and discovery is had, that the complaint may not hereafter be rendered vulnerable to attack, and, for this reason, our disposition is without prejudice to whatever proceedings defendants may be advised to pursue as matters develop further. Concur—Ross, Markewich and Lynch, JJ.; Murphy, P. J., dissents in part and Silverman, J., dissents in separate memoranda as follows.