Residence on Madison Condominium v. W.T. Gallagher & Associates, Inc.

Majority

p. 209

Residence on Madison Condominium, Respondent, v W.T. Gallagher & Associates, Inc., et al., Appellants, et al., Defendant.

[706 NYS2d 325]

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered November 17, 1999, which denied defendants-appellants’ motion to dismiss the second, third and fourth causes of action against them pursuant to CPLR 3211, unanimously affirmed, with costs.

Taking the allegations of the complaint as true and resolving all inferences reasonably flowing from those allegations in the pleader’s favor, as we must on a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (see, Cron v Hargro Fabrics, 91 NY2d 362 , 366), we conclude, as did the

p. 210

motion court, that plaintiffs second and third causes of action for fraudulent concealment and fraudulent misrepresentation sufficiently state the essential elements of the claims (see, Lama Holding Co. v Smith Barney, 88 NY2d 413 , 421; Swersky v Dreyer & Traub, 219 AD2d 321 , 326) and adequately apprise defendants of “the circumstances constituting the wrong,” as required by CPLR 3016 (b) (see, Lanzi v Brooks, 43 NY2d 778 , 780; Bernstein v Kelso & Co., 231 AD2d 314 , 320).

We have considered appellants’ remaining arguments, including those pertaining to the denial of that branch of their motion seeking to dismiss plaintiffs fraud causes and its fourth cause of action for breach of fiduciary duty as time-barred, and find them unavailing. Concur — Sullivan, P. J., Nardelli, Tom, Mazzarelli and Wallach, JJ.

Cases cited

Cron v. Hargro Fabrics, Inc. 91 NY2d 362 N.Y. 1998-03-26 at 366 p. 209
Lama Holding Co. v. Smith Barney Inc. 88 NY2d 413 N.Y. 1996-06-13 at 421 p. 210
Swersky v. Dreyer & Traub 219 AD2d 321 N.Y. App. Div. 1996-04-30 at 326 p. 210
Lanzi v. Brooks 43 NY2d 778 N.Y. 1977-12-15 at 780 p. 210
Bernstein v. Kelso & Co. 231 AD2d 314 N.Y. App. Div. 1997-07-01 at 320 p. 210