Supreme Court, Appellate Division, Second Department, New York.
Ormond GILL et al., Respondents,
v.
CARIBBEAN HOME REMODELING CO., INC., et al., Defendants,
and
Price Walters Associates Inc., Appellant.
Dec. 10, 1979.
In an action by homeowners to recover damages for, inter alia, breach of
contract, defendant company, which financed plaintiffs' home improvement,
appealed from so much of an order of Queens County Supreme Court, Joseph J.
Kunzeman, J., as denied the branches of its motion seeking dismissal of the
first and fourth causes of action for failure to state a cause of action, and
summary judgment on the second, third and fourth causes of action. The Supreme
Court, Appellate Division, held that: (1) plaintiffs' cause of action for fraud
failed to comply with the statutory requirement of particularity, and as a
result of the complaint's failure to be sufficiently particular, defendant would
be substantially prejudiced in preparing a defense; (2) the second and third
causes of action, for breach of contract and breach of warranty, alleged facts
properly to be resolved by the trier of fact; and (3) absent specific
allegations concerning the acts complained of, homeowners' fourth cause of
action for harassment failed to state a cause of action, and would be dismissed
with leave to replead.
Order modified and affirmed as modified.
West Headnotes
[1] Pleading 18
302k18 Most Cited Cases
Homeowners' cause of action for fraud by company engaged in the business of home
improvement financing failed to comply with the statutory requirement of
particularity, and as a result of the complaint's failure to be sufficiently
particular, defendant would be substantially prejudiced in preparing a defense.
CPLR 3016(b).
[2] Pleading 18
302k18 Most Cited Cases
Bare allegations of fraud without any allegation of the details constituting the
wrong are clearly not sufficient to sustain such a cause of action. CPLR
3016(b).
[3] Contracts 332(2)
95k332(2) Most Cited Cases
(Formerly 98k2(2))
In suit brought by homeowners against, inter alia, company engaged in the
business of home improvement financing, the second and third causes of action,
for breach of contract and breach of warranty, alleged facts properly to be
resolved by the trier of fact.
[4] Pleading 362(1)
302k362(1) Most Cited Cases
[4] Pleading 362(5)
302k362(5) Most Cited Cases
[4] Torts 26(1)
379k26(1) Most Cited Cases
Absent specific allegations concerning the acts complained of, homeowners'
fourth cause of action against home improvement financing company for harassment
failed to state a cause of action and would be dismissed with leave to replead.
CPLR 3013, 3026.
**448 Kenneth Kirschenbaum, Jericho, for appellant.
Fine Dubowski & Bassik, Jamaica (Barry S. Bassik and Joseph Dubowski, Jamaica,
of counsel), for respondents.
*610 Before MANGANO, J. P., and GULOTTA, COHALAN and GIBBONS, JJ.
MEMORANDUM BY THE COURT.
*609 In an action, Inter alia, to recover damages for breach of contract,
defendant Price Walters Associates Inc. appeals from so much of an order of the
Supreme Court, Queens County, dated July 3, 1979, as denied the *610 branches of
its motion which sought (1) dismissal of plaintiffs' first and fourth causes of
action for failure to state a cause of action, and (2) summary judgment on the
second, third and fourth causes of action.
Order modified, on the law, by deleting the provision which denied the "balance
of the motion", and substituting therefor provisions (**449 1) dismissing the
first cause of action, (2) reducing the claim of damages against appellant in
the second and third causes of action, for breach of contract and breach of
warranty, respectively, so as not to exceed the amount of indebtedness allegedly
owed to appellant, and (3) dismissing the fourth cause of action for harassment,
with leave to plaintiffs to replead said cause of action. As so modified, order
affirmed insofar as appealed from, without costs or disbursements.
This is an action by the plaintiffs homeowners to recover damages on various
theories from, Inter alia, defendant Price Walters Associates Inc., a
corporation engaged in the business of home improvement financing. Said action
arose out of certain home improvements that were to be performed in plaintiffs'
residence by defendant Caribbean Home Remodeling Co., Inc., a home improvement
company that has not answered or appeared in this action.
[1][2] In our opinion, plaintiffs' first cause of action for fraud fails to
comply with the requirement of particularity set forth in CPLR 3016 (subd. (b)).
Bare allegations of fraud without any allegation of the details constituting the
wrong are clearly not sufficient to sustain such a cause of action (see Knowles
v. City of New York, 176 N.Y. 430, 68 N.E. 860; Biggar v. Buteau, 51 A.D.2d 601,
377 N.Y.S.2d 788; Meltzer v. Klein, 29 A.D.2d 548, 285 N.Y.S.2d 920; 3
Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3016.04). As a result of the failure
of plaintiffs' complaint to be sufficiently particular (see CPLR 3013),
appellant would be substantially prejudiced in preparing a defense (see CPLR
3026; Meltzer v. Klein, supra ). Thus, e. g., plaintiffs' allegation in
opposition to appellant's motion that "contracts and other documents" were
forged should be pleaded with particularity.
[3] The second and third causes of action, for breach of contract and breach of
warranty, respectively, in our view, allege facts properly to be resolved by the
trier of fact. The retail installment contract allegedly entered into by the
parties provides, in conformance with Federal law (see 16 CFR 433.2), that the
assignee of the contract (appellant) is subject to all claims which the debtor
(plaintiffs) can assert against the seller (defendant Caribbean Home Remodeling
Co., Inc.), though recovery by the debtor is limited in said provision to the
amount of indebtedness allegedly owed to the holder of the retail installment
obligation. Thus, plaintiffs' claim of damages should be reduced accordingly.
[4] In the absence of specific allegations concerning the acts complained of,
plaintiffs' fourth cause of action for harassment fails to state a cause of
action, and is dismissed with leave to plaintiffs to replead (see CPLR 3013,
3026).
422 N.Y.S.2d 448, 73 A.D.2d 609
END OF DOCUMENT
Supreme Court, Appellate Division, Second Department, New York.Ormond GILL et al., Respondents,v.CARIBBEAN HOME REMODELING CO., INC., et al., Defendants,andPrice Walters Associates Inc., Appellant.
Dec. 10, 1979.
In an action by homeowners to recover damages for, inter alia, breach of contract, defendant company, which financed plaintiffs' home improvement, appealed from so much of an order of Queens County Supreme Court, Joseph J. Kunzeman, J., as denied the branches of its motion seeking dismissal of the first and fourth causes of action for failure to state a cause of action, and summary judgment on the second, third and fourth causes of action. The Supreme Court, Appellate Division, held that: (1) plaintiffs' cause of action for fraud failed to comply with the statutory requirement of particularity, and as a result of the complaint's failure to be sufficiently particular, defendant would be substantially prejudiced in preparing a defense; (2) the second and third causes of action, for breach of contract and breach of warranty, alleged facts properly to be resolved by the trier of fact; and (3) absent specific allegations concerning the acts complained of, homeowners' fourth cause of action for harassment failed to state a cause of action, and would be dismissed with leave to replead.
Order modified and affirmed as modified.
West Headnotes
[1] Pleading 18302k18 Most Cited Cases
Homeowners' cause of action for fraud by company engaged in the business of home improvement financing failed to comply with the statutory requirement of particularity, and as a result of the complaint's failure to be sufficiently particular, defendant would be substantially prejudiced in preparing a defense. CPLR 3016(b).
[2] Pleading 18302k18 Most Cited Cases
Bare allegations of fraud without any allegation of the details constituting the wrong are clearly not sufficient to sustain such a cause of action. CPLR 3016(b).
[3] Contracts 332(2)95k332(2) Most Cited Cases (Formerly 98k2(2))
In suit brought by homeowners against, inter alia, company engaged in the business of home improvement financing, the second and third causes of action, for breach of contract and breach of warranty, alleged facts properly to be resolved by the trier of fact.
[4] Pleading 362(1)302k362(1) Most Cited Cases
[4] Pleading 362(5)302k362(5) Most Cited Cases
[4] Torts 26(1)379k26(1) Most Cited Cases
Absent specific allegations concerning the acts complained of, homeowners' fourth cause of action against home improvement financing company for harassment failed to state a cause of action and would be dismissed with leave to replead. CPLR 3013, 3026. **448 Kenneth Kirschenbaum, Jericho, for appellant.
Fine Dubowski & Bassik, Jamaica (Barry S. Bassik and Joseph Dubowski, Jamaica, of counsel), for respondents.
*610 Before MANGANO, J. P., and GULOTTA, COHALAN and GIBBONS, JJ.
MEMORANDUM BY THE COURT.
*609 In an action, Inter alia, to recover damages for breach of contract, defendant Price Walters Associates Inc. appeals from so much of an order of the Supreme Court, Queens County, dated July 3, 1979, as denied the *610 branches of its motion which sought (1) dismissal of plaintiffs' first and fourth causes of action for failure to state a cause of action, and (2) summary judgment on the second, third and fourth causes of action.
Order modified, on the law, by deleting the provision which denied the "balance of the motion", and substituting therefor provisions (**449 1) dismissing the first cause of action, (2) reducing the claim of damages against appellant in the second and third causes of action, for breach of contract and breach of warranty, respectively, so as not to exceed the amount of indebtedness allegedly owed to appellant, and (3) dismissing the fourth cause of action for harassment, with leave to plaintiffs to replead said cause of action. As so modified, order affirmed insofar as appealed from, without costs or disbursements.
This is an action by the plaintiffs homeowners to recover damages on various theories from, Inter alia, defendant Price Walters Associates Inc., a corporation engaged in the business of home improvement financing. Said action arose out of certain home improvements that were to be performed in plaintiffs' residence by defendant Caribbean Home Remodeling Co., Inc., a home improvement company that has not answered or appeared in this action.
[1][2] In our opinion, plaintiffs' first cause of action for fraud fails to comply with the requirement of particularity set forth in CPLR 3016 (subd. (b)). Bare allegations of fraud without any allegation of the details constituting the wrong are clearly not sufficient to sustain such a cause of action (see Knowles v. City of New York, 176 N.Y. 430, 68 N.E. 860; Biggar v. Buteau, 51 A.D.2d 601, 377 N.Y.S.2d 788; Meltzer v. Klein, 29 A.D.2d 548, 285 N.Y.S.2d 920; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3016.04). As a result of the failure of plaintiffs' complaint to be sufficiently particular (see CPLR 3013), appellant would be substantially prejudiced in preparing a defense (see CPLR 3026; Meltzer v. Klein, supra ). Thus, e. g., plaintiffs' allegation in opposition to appellant's motion that "contracts and other documents" were forged should be pleaded with particularity.
[3] The second and third causes of action, for breach of contract and breach of warranty, respectively, in our view, allege facts properly to be resolved by the trier of fact. The retail installment contract allegedly entered into by the parties provides, in conformance with Federal law (see 16 CFR 433.2), that the assignee of the contract (appellant) is subject to all claims which the debtor (plaintiffs) can assert against the seller (defendant Caribbean Home Remodeling Co., Inc.), though recovery by the debtor is limited in said provision to the amount of indebtedness allegedly owed to the holder of the retail installment obligation. Thus, plaintiffs' claim of damages should be reduced accordingly.
[4] In the absence of specific allegations concerning the acts complained of, plaintiffs' fourth cause of action for harassment fails to state a cause of action, and is dismissed with leave to plaintiffs to replead (see CPLR 3013, 3026).
422 N.Y.S.2d 448, 73 A.D.2d 609
END OF DOCUMENT