Opinion
December 10, 1962
In an action to recover damages for fraud, and for other relief, defendants appeal from an order of the Supreme Court, Queens County, dated April 19, 1962, which denied their motion to dismiss the second amended complaint on the ground that it appears on the face thereof that it does not state facts sufficient to constitute a cause of action. Order affirmed, with $10 costs and disbursements. Defendants' time to serve their answers is extended until 20 days after entry of the order hereon. We agree with the determination of the Special Term that the second cause of action adequately pleads a cause of action based upon defendants' fraud in inducing plaintiff to surrender possession of a rent-controlled apartment for one that was not subject to rent control. The cause of action is not insufficient merely because it may not allege the proper measure of damages ( A.S. Rampell, Inc., v. Hyster Co., 3 N.Y.2d 369, 383). Since the motion to dismiss the complaint is addressed to the entire complaint and since at least one cause of action is sufficient, the motion was properly denied ( Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 84; Altman v. Altman, 15 A.D.2d 546). Beldock, P.J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.