Summary
modifying by denying motion to strike
Summary of this case from Mattia v. Vill. of Pittsford Planning & Zoning Bd. of AppealsOpinion
6554.
October 25, 2005.
Order, Supreme Court, New York County (Faviola A. Soto, J.), entered June 7, 2004, which granted plaintiff's motion to dismiss defendant's third counterclaim sounding in fraud and to strike certain counterclaim paragraphs, unanimously modified, on the law and the facts, the motion denied insofar as it seeks to strike counterclaim paragraphs 36, 37, 43-48, and 51-52, those paragraphs reinstated, and otherwise affirmed, without costs.
Garfunkel, Wild Travis, P.C., Great Neck (Andrew L. Zwerling of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Ann E. Scherzer of counsel), for respondent.
Before: Buckley, P.J., Mazzarelli, Andrias, Saxe and Williams, JJ.
The elements of a fraud claim must be pleaded with particularity (CPLR 3016 [b]). Mere allegations of fraudulent intent are insufficient ( Salles v. Chase Manhattan Bank, 300 AD2d 226, 235). The third counterclaim, consisting simply of a conclusory narrative alleging, without reference to any specific instance, that plaintiff administered a defective billing system, failed to satisfy this standard.
A motion to strike scandalous or prejudicial material from a pleading ( see CPLR 3024 [b]) will be denied if the allegations are relevant to a cause of action ( see e.g. Bristol Harbour Assoc. v. Home Ins. Co., 244 AD2d 885). The disputed paragraphs are, to the extent indicated, relevant to the still viable breach of contract and unjust enrichment counterclaims.