Opinion
154
February 5, 2002.
Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered October 24, 2001, which denied defendant-appellant's motion to dismiss plaintiff's fourth cause of action pursuant to CPLR 3016(b), 3211(a)(7) and 3212, unanimously affirmed, without costs.
EDWIN RIVERA, for plaintiff-respondent.
MICHAEL A. CASTELLI, for defendant-appellant.
Before: Williams, J.P., Andrias, Rosenberger, Buckley, JJ.
Based on the allegations in the complaint, which must be taken as true on a motion to dismiss for failure to state a cause of action (see, Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366), and the affidavits properly submitted by plaintiff in opposition to the motion to dismiss (see,Mulder v. Donaldson, Lufkin Jenrette, 208 A.D.2d 301, 307), plaintiff's fourth cause of action sufficiently states the elements of the claim and clearly informs defendant-appellant of the circumstances constituting the alleged fraud (see, Lanzi v. Brooks, 43 N.Y.2d 778, 780). The evidentiary matter submitted by plaintiff was also sufficient to raise triable issues of fact precluding a grant of summary judgment to defendant-appellant.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.