DeRossi v. Rubinstein
| Decision Date | 21 November 1996 |
| Citation | 650 N.Y.S.2d 10,233 A.D.2d 220 |
| Parties | John DeROSSI, et al., Plaintiffs-Appellants, v. Lillian RUBINSTEIN, etc., et al., Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ambrose M. Richardson, for Plaintiffs-Appellants.
Robert C. Boneberg, for Defendants-Respondents.
Before MURPHY, P.J., and MILONAS, WILLIAMS, TOM and ANDRIAS, JJ.
Order, Supreme Court, New York County (Carol Huff, J.), entered February 1, 1996, which denied plaintiffs' motion for summary judgment or, in the alternative, to strike defendants' answer for failure to properly respond to discovery and, upon a search of the record, granted summary judgment dismissing the complaint, and also granted defendants' cross-motion for leave to serve an amended answer containing a counterclaim based on intentional infliction of emotional distress, unanimously modified, on the law, summary judgment denied to defendants, the complaint reinstated and the cross-motion for leave to serve an amended answer denied with leave to plaintiffs to seek relief for failure to comply with disclosure, and otherwise affirmed, without costs.
The motion court erred by improperly engaging in issue determination in dismissing this complaint on summary judgment (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387), and by improperly allowing service of a counterclaim which was time-barred and did not meet the requirements of the "relation-back" rule.
The first cause of action, a sufficiently-pleaded claim for fraud, was dismissed on the basis of documentary evidence submitted on the motions. However, this evidence, an investment solicitation letter and a subscription agreement signed by plaintiffs, tends to support the fraud claim at least as much as it defeats it, thus raising triable issues of fact. The solicitation letter is at best ambiguous and at worst misleading in describing the tax implications of the limited-partnership investment. The representation in the subscription agreement cited as pivotal by the court, that plaintiffs had "consulted with a professional investment advisor, attorney or accountant concerning this investment", does not contradict in the least their allegation that they relied on defendants' decedent/principal, their tax and investment advisor, in this matter. Moreover, the record indicates that plaintiffs, whom the decedent allegedly knew to be neophyte investors, executed the...
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...[judgment] even with a proper pleading, because issues of fraud are almost inevitably questions of fact. DeRossi v. Rubinsten, 233 A.D.2d 220, 650 N.Y.S.2d 10 (1st Dept.1996). In view of the procedural defects, the court does not reach the issue of whether, if properly interposed, defendant......
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