Opinion
January 12, 1970
In an action to recover damages inter alia for breach of contract, plaintiff appeals from an order of the Supreme Court, Westchester County, dated January 24, 1969, which granted respondents' separate motions to dismiss the amended complaint as to them on the ground that it fails to state a cause of action as to them (CPLR 3211, subd. [a], par. 7). Order modified, on the law, by inserting in the first decretal paragraph thereof, after the words "granted in all respects," the following: "as to defendant Norman Cooper and denied in all respects as to defendant Ernest W. Levey;" and by striking out the second ordering paragraph, which directed dismissal of the first, second and third causes of action in the amended complaint, these being all the causes of action therein against Ernest W. Levey. As so modified, order affirmed, with $10 costs and disbursements to appellant against respondent Ernest W. Levey and with $10 costs and disbursements to respondent Norman Cooper against appellant. In our opinion, the first cause of action in the amended complaint, which is directed against respondent Levey, is sufficient ( Glens Falls Ins. Co. v. Reynolds, 3 A.D.2d 686; Lindner v. Eichel, 34 Misc.2d 840, 844; cf. Robins v. Finestone, 308 N.Y. 543). It was therefore error to dismiss the entire complaint as to that respondent ( Griefer v. Newman, 22 A.D.2d 696). Beldock, P.J., Christ, Munder, Martuscello and Kleinfeld, JJ., concur.