Opinion
September 13, 1990
Appeal from the Supreme Court, New York County (Eugene Nardelli, J.).
Plaintiff's second cause of action failed to set forth the elements of fraud with the required specificity (CPLR 3016 [b]). In any case, plaintiff completely failed in his burden to oppose summary judgment by laying bare his proof and demonstrating material issues of fact requiring a trial (Tobron Off. Furniture Corp. v. King World Prods., 161 A.D.2d 355). The only genuine issue of fact raised by the plaintiff was whether or not he was given a three-hour lesson on the use of computer software without charge by the defendants and offered further free instruction or was given only a 15-minute lesson, and his demands for further lessons rejected. Although plaintiff's allegations raised an issue of credibility, the fact that plaintiff may not have been given lessons is immaterial, since plaintiff has in no way demonstrated that the defendants were under any duty to do so.
We have considered the plaintiff's other arguments, and find them to be without merit. We note that plaintiff has erroneously appealed from the order directing entry of judgment, and not from the final judgment entered thereon. In the interest of judicial economy, we deem the appeal an appeal from the subsequent judgment, and have considered the appeal on its merits (see, Chase Manhattan Bank v. Roberts Roberts, 63 A.D.2d 566, 567).
Concur — Murphy, P.J., Sullivan, Milonas, Asch and Smith, JJ.