68 BURNS NEW HOLDING INC v. BURNS STREET OWNERS CORP

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Supreme Court, Appellate Division, Second Department, New York.

68 BURNS NEW HOLDING, INC., appellant, v. BURNS STREET OWNERS CORP., et al., respondents.

Decided: May 31, 2005

A. GAIL PRUDENTI, P.J., THOMAS A. ADAMS, REINALDO E. RIVERA, and STEVEN W. FISHER, JJ. Peter Klose, Nyack, N.Y., for appellant. Cantor, Epstein & Degenshein, LLP, New York, N.Y. (Dale J. Degenshein and Bryan Mazzola of counsel), for respondents.

In an action, inter alia, to recover damages for the defendants' failure to properly apply Senior Citizens Rent Increase Exemption credits, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Satterfield, J.), dated November 27, 2000, as, upon denying its motion pursuant to CPLR 6301, among other things, to enjoin the defendants from interfering with the sale of shares of stock in certain cooperative apartments, dismissed the complaint for failure to state a cause of action.

ORDERED that the order is modified, on the law, by deleting the provision thereof dismissing the second and third causes of action;  as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff, and the second and third causes of action are reinstated.

 “[A] motion for a temporary injunction opens the record and gives the court authority to pass upon the sufficiency of the underlying pleading” (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 272, 401 N.Y.S.2d 182, 372 N.E.2d 17;  see Livas v. Mitzner, 303 A.D.2d 381, 382, 756 N.Y.S.2d 274;  Ratner v. Steinberg, 259 A.D.2d 744, 687 N.Y.S.2d 432).  “However, this power does not extend to an evaluation of conflicting evidence (Six Nations Apt. Hous. Fund Dev. Co. v. Six Nations Props., 175 A.D.2d 567, 572 N.Y.S.2d 234), and if a complaint states a cause of action, the court may not dismiss it on a motion for a preliminary injunction” (Ratner v. Steinberg, supra at 744, 687 N.Y.S.2d 432).  “Moreover, the court may not, on its own initiative, convert a motion for a preliminary injunction into one for summary judgment without giving adequate notice to the parties and affording them an opportunity to lay bare their proof” (Livas v. Mitzner, supra at 382, 756 N.Y.S.2d 274;  see Guggenheimer v. Ginzburg, supra at 272, 401 N.Y.S.2d 182, 372 N.E.2d 17).

 Here, the Supreme Court properly exercised its authority to pass upon the sufficiency of the underlying pleadings (see Guggenheimer v. Ginzburg, supra ).   In so doing, the Supreme Court correctly dismissed the first and fourth causes of action.   The first cause of action failed to state a cause of action because it did not allege the factual details and circumstances of the alleged fraud and misrepresentation with sufficient particularity as required of such claims (see CPLR 3016[b];  Dumas v. Fiorito, 13 A.D.3d 332, 333, 786 N.Y.S.2d 106;  Kline v. Taukpoint Realty Corp., 302 A.D.2d 433, 433, 754 N.Y.S.2d 899;  Cohen v. Houseconnect Realty Corp., 289 A.D.2d 277, 278, 734 N.Y.S.2d 205).   The fourth cause of action, which alleged tortious interference with contract, also failed to state a cause of action.   The plaintiff failed to allege that the defendants intentionally and improperly procured the breach of any contracts without justification, that the contracts were, in fact, breached, and that the contracts would not have been breached but for the defendants' conduct (see Velazquez v. Lackmann Food Servs. at Old Country Rd., 251 A.D.2d 495, 496, 674 N.Y.S.2d 413;  Schuckman Realty v. Marine Midland Bank, N.A., 244 A.D.2d 400, 401, 664 N.Y.S.2d 73).

However, construing the second and third causes of action liberally, we find that they contain discernible factual allegations which manifest causes of action cognizable at law (see Guggenheimer v. Ginzburg, supra at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17;  Morris v. Morris, 306 A.D.2d 449, 451, 763 N.Y.S.2d 622).   Therefore, the second and third causes of action should not have been dismissed (see Guggenheimer v. Ginzburg, supra at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17;  Morris v. Morris, supra at 451, 763 N.Y.S.2d 622).

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