Summary
affirming dismissal of cause of action for accounting based upon plaintiff's "failure to allege that she had demanded an accounting or that the defendants refused to provide her with an accounting"
Summary of this case from McCaffery v. McCafferyOpinion
2003-01902.
Decided June 21, 2004.
In an action, inter alia, to recover damages for fraud, breach of contract, breach of fiduciary duty, and intentional interference with contractual relations, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Golar, J.), dated January 16, 2003, as granted the cross motion of the defendants David Scott and Renal Dialysis of Southeast Queens, LLC, and the separate cross motion of the defendants Southeast Queens Medical Group, LLP, and New York Hospital Medical Center of Queens pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them for failure to state a cause of action.
Borchert, Genovesi, LaSpina Landicino, P.C. (Leon Paul Hart, Westbury, N.Y., of counsel), for appellant.
Gabor Gabor, Garden City, N.Y. (David G. Gabor of counsel), for respondents David Scott and Renal Dialysis of Southeast Queens, LLC.
Nixon Peabody, LLP, New York, N.Y. (Constance M. Boland and Erika J. Duthiers of counsel), for respondents Southeast Queens Medical Group, LLP, and New York Hospital Medical Center of Queens.
Before: MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, ROBERT W. SCHMIDT, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the defendants David Scott and Renal Dialysis of Southeast Queens, LLC.
The Supreme Court properly granted the separate cross motions of the defendants pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them for failure to state a cause of action. Accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference ( see Leon v. Martinez, 84 N.Y.2d 83), the complaint fails to state a cause of action ( see CPLR 3211[a][7]). Indeed, the plaintiff's allegations regarding the conduct of the defendants were impermissibly vague and conclusory ( see Stoianoff v. Gahona, 248 A.D.2d 525, appeal dismissed 92 N.Y.2d 844, cert denied sub nom Stoianoff v. New York Times, 525 U.S. 953). Moreover, the plaintiff's papers submitted in opposition to the cross motions failed to remedy the defects in the complaint ( see generally Cron v. Hargro Fabrics, 91 N.Y.2d 362, 367; see also Cramer v. Englert, 289 A.D.2d 617, 618). We note that the plaintiff's cause of action for an accounting was also properly dismissed for her failure to allege that she had demanded an accounting or that the defendants refused to provide her with an accounting ( see NAB Constr. Corp. v. New York City Paper Mill, 265 A.D.2d 312).
ALTMAN, J.P., FLORIO, SCHMIDT and RIVERA, JJ., concur.