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Frith v. Affordable Homes of America, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Aug 31, 1998
253 A.D.2d 536 (N.Y. App. Div. 1998)

Opinion

August 31, 1998

Appeal from the Supreme Court, Kings County (Vinik, J.).


Ordered that the order is affirmed, with costs.

On their motion for summary judgment dismissing the amended complaint, T.A.M. Equity Corp., d/b/a HomeTrust Mortgage Bankers, as well as its vice president Paul Levine, and its loan officer Susan Day (hereinafter the respondents), met their burden of submitting admissible proof that they did not engage in fraud ( see, Shui Ching Chan v. Bay Ridge Park Hill Realty Co., 213 A.D.2d 467; County of Westchester v. Becket Assocs., 102 A.D.2d 34, 50-51, affd 66 N.Y.2d 642) or negligent misrepresentation ( see, Banque Nationale de Paris v. 1567 Broadway Ownership Assocs., 214 A.D.2d 359).

Although CPLR 3212 (f) permits a party opposing summary judgment to obtain further discovery when it appears that facts supporting the position of the opposing party exist but cannot be stated ( see, Urcan v. Cocarelli, 234 A.D.2d 537), it should not be resorted to where, as here, there has been a failure to demonstrate that the discovery sought would produce relevant evidence to support the plaintiffs' allegations ( see, Greenberg v. McLaughlin, 242 A.D.2d 603; Zarzona v. City of New York, 208 A.D.2d 920; Plotkin v. Franklin, 179 A.D.2d 746; Kenworthy v. Town of Oyster Bay, 116 A.D.2d 628; see also, Auerbach v. Bennett, 47 N.Y.2d 619, 636).

In addition, the respondents are entitled to dismissal of the cause of action to recover damages for intentional infliction of emotional distress. Assuming the allegations in the amended complaint to be true, they do not rise to the level of outrageous conduct on the part of the respondents ( see, Howell v. New York Post Co., 81 N.Y.2d 115, 121; Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303; Bando v. Achenbaum, 234 A.D.2d 242; Vasilopoulos v. Romano, 228 A.D.2d 669).

Accordingly, the respondents' motion for summary judgment was properly granted.

Miller, J.P., Krausman, McGinity and Luciano, JJ., concur.


Summaries of

Frith v. Affordable Homes of America, Inc.

Appellate Division of the Supreme Court of New York, Second Department
Aug 31, 1998
253 A.D.2d 536 (N.Y. App. Div. 1998)
Case details for

Frith v. Affordable Homes of America, Inc.

Case Details

Full title:SARAH FRITH et al., Appellants, v. AFFORDABLE HOMES OF AMERICA, INC., et…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Aug 31, 1998

Citations

253 A.D.2d 536 (N.Y. App. Div. 1998)
676 N.Y.S.2d 513

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