Opinion
March 31, 1994
Appeal from the Supreme Court, New York County (Carmen Beauchamp Ciparick, J.).
Defendant has failed to allege sufficient evidentiary facts in support of his affirmative defense that he was fraudulently induced to enter the subject settlement. None of the elements of fraud, except for scienter, are even pleaded, and the scienter allegations are entirely conclusory. In any event, defendant surely was in a better position than plaintiff to ascertain the status of the matter about which he claims he was misled by plaintiff and this carelessness on his part cannot be made into a fraud on plaintiff's part.
Defendant's counterclaim for intentional infliction of emotional distress, apparently arising out of the claimed fraud, is deficient for the same reasons, but should not have been dismissed pursuant to CPLR 3216 (a), in the absence of the written demand required by CPLR 3216 (b) (3). However, to reverse for this reason, when dismissal inevitably would follow because of defendant's inability to sufficiently allege the underlying fraud, would exalt form over substance. Accordingly, we grant plaintiff summary judgment dismissing the counterclaim pursuant to CPLR 3212 (b).
Concur — Carro, J.P., Rosenberger, Ross, Asch and Tom, JJ.