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Goldstein v. Haberman

Appellate Division of the Supreme Court of New York, Second Department
May 18, 1992
183 A.D.2d 807 (N.Y. App. Div. 1992)

Opinion

May 18, 1992

Appeal from the Supreme Court, Nassau County (Robbins, J.).


Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The defendant moved pursuant to CPLR 3211 (a) (5) to dismiss the plaintiffs' complaint on the ground that the cause of action may not be maintained because of the applicable Statute of Limitations. In his reply affirmation the defendant first raised the argument that the complaint should also be dismissed for failure to state a cause of action (CPLR 3211 [a] [7]). In accordance with the notice of motion's general prayer for relief, the court granted the defendant's motion to dismiss the complaint on the ground that it failed to state a cause of action (CPLR 3211 [a] [7]). Inasmuch as the motion to dismiss was not predicated upon a claimed failure to state a cause of action, the plaintiffs were never afforded an opportunity to seek leave to plead again under CPLR 3211 (e), and that deprivation worked substantial prejudice to them (McLearn v. Cowen Co., 60 N.Y.2d 686, 689; see also, Mitchell v. Mendez, 107 A.D.2d 737). Accordingly, it was error to grant the motion to dismiss on the alternative ground.

We have reviewed the parties' remaining contentions and find them to be without merit. Bracken, J.P., Lawrence, Eiber and Santucci, JJ., concur.


Summaries of

Goldstein v. Haberman

Appellate Division of the Supreme Court of New York, Second Department
May 18, 1992
183 A.D.2d 807 (N.Y. App. Div. 1992)
Case details for

Goldstein v. Haberman

Case Details

Full title:ELLSWORTH GOLDSTEIN et al., Appellants, v. DAVID S. HABERMAN, Respondent

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

Date published: May 18, 1992

Citations

183 A.D.2d 807 (N.Y. App. Div. 1992)
584 N.Y.S.2d 121

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