Opinion
5450
February 24, 2005.
Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered March 12, 2004, which denied defendants' motion pursuant to CPLR 3211 (a) to dismiss the complaint, unanimously affirmed, with costs.
Before: Mazzarelli, J.P., Sullivan, Ellerin, Nardelli and Williams, JJ., concur.
The complaint sufficiently alleges new facts concerning defendants' purportedly fraudulent intentions ( see 175 E. 74th Corp. v. Hartford Acc. Indem. Co., 51 NY2d 585, 590 n 1 [1980]), as evidenced by their subsequent conduct ( see Tomkins PLC v. Bangor Punta Consol. Corp., 194 AD2d 493, lv dismissed 82 NY2d 888), so as to withstand a motion to dismiss on grounds of issue preclusion. Defendants' assertion that their actions were ratified by plaintiffs is not sufficient to warrant dismissal at this juncture.
We have examined defendants' remaining arguments and find them unavailing.