Foley v. D'Agostino

• Decision Date: 17 March 1964
• Citation: 248 N.Y.S.2d 121,21 A.D.2d 60
• Parties: John FOLEY, James F. Waldie and William Johenning, as Executors of the Last Will and Testament of Pasquale D'Agostino, Deceased, Plaintiffs-Appellants, v. Nicholas D'AGOSTINO, Stephen I. D'Agostino, Nicholas D'Agostino, Jr. and Nicholas D'Agostino--86th Street, Inc., Defendants-Respondents, and D'Agostino Bros. Inc., et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 121

248 N.Y.S.2d 121

21 A.D.2d 60

John FOLEY, James F. Waldie and William Johenning, as

Executors of the Last Will and Testament of

Pasquale D'Agostino, Deceased, Plaintiffs-Appellants, v. Nicholas D'AGOSTINO, Stephen I. D'Agostino, Nicholas

D'Agostino, Jr. and Nicholas D'Agostino--86th

Street, Inc., Defendants-Respondents,

and D'Agostino Bros. Inc., et

al., Defendants.

Supreme Court, Appellate Division, First Department.

March 17, 1964.

Justin M. Golenbock, New York City, of counsel (Seymour Kleinman, Lawrence K. Feitell and Martin W. Felcher, New York City, on the brief; Golenbock & Barell, New York City, attorneys) for plaintiffs-appellants.

Sidney P. Howell, Jr., New York City, of counsel (Louis H. Powell and Richard S. Guyer, New York City, on the brief; Regan, Goldfarb, Powell & Quinn, New York City, attorneys) for defendants-respondents.

Before BREITEL, J. P., and RABIN, STEVENS, EAGER and STEUER, JJ.

EAGER, Justice.

This appeal is from an order which, upon motion pursuant to CPLR Rule 3211(a)(7), dismissed plaintiffs' complaint and each of the three causes of action therein upon the ground that there was a failure to state any cause of action.

The action was brought by the plaintiffs as 50% shareholders in several related family close corporations engaged in conducting a chain of supermarkets in New York City with the prominent use of the family name 'D'Agostino' in the names and businesses of the corporations. The first and second alleged causes, stated to be brought 'on behalf of' plaintiffs 'and in the right and for the benefit of the family corporations' are alleged to be maintained against the other 50% stockholder and certain directors, officers and employees of the corporations for an injunction and an accounting in connection with their alleged wrongful organization and threatened conduct of an independent and competing supermarket utilizing the family name. The first cause is claimed to be sustainable on the theory that the acts and threatened acts of the individual defendants are in violation of the fiduciary obligations owing by them as officers to the family corporations; and the second alleged cause is framed on the basis that such acts amount to unfair competition in violation of the rights of the family corporations. There is a third alleged cause of action which is set up on the alleged basis of the existence of a joint venture rather than on the theory of a derivative action.

Under CPLR, the sufficiency of a pleading to state a cause of action or defense will generally depend upon whether or not there was substantial compliance with Section 3013 providing that 'Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and the material elements of each cause of action or defense.' These provisions are declared to be 'the heart of the pleading requirement and [represent] an attempt to set up a realistic requirement of pleading' (1957 First Preliminary Report to Legislature, Advisory Committee's Notes, p. 63). By virtue of the provisions, the emphasis with respect to pleading is placed, where it should be, upon the primary function of pleadings, namely, that of adequately advising the adverse party of the pleader's claim or defense. (See David D. Siegel, A Biannual Survey of New York Practice, 38 St. John's L.Rev. pp. 190, 199-200.) The 'basic requirement * * * [now] is that the pleadings identify the transaction and indicate the theory of recovery with sufficient precision to enable the court to control the case and the opponent to prepare.' (1957 First Preliminary Report, supra, p. 63.) So, generally speaking, 'pleadings should not be dismissed or ordered amended unless the allegations therein are not sufficiently particular to apprise the court and parties of the subject matter of the controversy.' (3 Weinstein-Korn-Miller, New York Civil Practice, p3013.03.)

The CPLR directive that a pleading shall contain statements sufficiently particular to give 'notice' to the court and the parties replaced the provisions of former Section 241 of the Civil Practice Act that every pleading should contain a statement of the 'material facts * * * on which the party pleading relies'. This shift in the statement of pleading requirements is not without significance. By the elimination of the provision that pleadings state 'material facts'--a phrase that resulted in much needless motion practice under the Civil Practice Act--it was intended 'that the considerable judicial effort formerly expended in distinguishing 'evidence' or 'conclusions' from 'facts' be directed to more useful purposes.' (3 Weinstein-Korn-Miller, supra, p3013.01.) But it is clear that, under CPLR, the statements in pleadings are still required to be factual, that is, the essential facts required to give 'notice' must be stated. (See Wachtel, New York Practice, p. 102.) Nevertheless, a party may supplement or round out his pleading by conclusory allegations or by 'stating legal theories explicitly' if the facts upon which the pleader relies are also stated. (See Notes, 1957 First Preliminary Report, supra, p. 63.)

In addition to the basic general requirements for pleading statements as set out in CPLR § 3013 aforesaid, there are special provisions for particularity to be followed in pleading (a) conditions precedent, (b) corporate status, (c) judgment, decision or determination, and (d) special damages. (CPLR Rule 3015.) There are also special provisions for the particularity required for statements in specific actions, to wit, (a) libel or slander, (b) fraud or mistake, (c) separation, (d) judgment, (e) law of foreign country and (f) sale and delivery of goods or performing of labor or services (CPLR Rule 3016). Of these special provisions, only Rule 3016(b) is relevant on the question of the sufficiency of the complaint here. Therein, it is provided that in certain causes of action, including causes based upon fraud or breach of trust, 'the circumstances constituting the wrong shall be stated in detail.' This follows a common-law and code requirement of long standing, and was included in CPLR because it was thought that the provisions of CPLR § 3013 might not sufficiently indicate the rule in this particular class of cases. (See First Preliminary Report, supra, p. 68.) In any event, in view of the CPLR objective for greater liberality in pleading matters (see post) these special provisions should not be given the effect of requiring more now by way of detail and specificity in pleadings in these actions than was formerly required under the Civil Practice Act. Furthermore, bearing in mind that the sufficiency of a pleading statement primarily depends upon compliance with CPLR § 3013's basic requirements, these special provisions in Rule 3016(b) constitute no more than a directive that the 'transactions and occurrences' constituting the 'wrong' shall be pleaded in sufficient 'detail' to give adequate notice thereof.

The basic pleading requirements hereinbefore referred to are supplemented also by Rule 3014 setting forth guidelines in the matter of the form and arrangement of allegations, statements, causes of action and defenses. Therein, it is provided, inter alia, that every pleading shall 'consist of plain and concise statements in consecutively numbered paragraphs.' This provision applies to all pleadings and was designed to eliminate 'loosely drawn, verbose or poorly organized pleadings.' (See 3 Weinstein-Korn-Miller, supra, § 3014.01.) Where a pleading lacks such compliance with the plain and concise statement requirement as to be 'so vague or ambiguous that a party cannot reasonably be required to frame a response he may move for a more definite statement.' (CPLR Rule 3024(a).)

Upon a Rule 3211(a)(7) motion to dismiss a cause of action, however, we look to the substance rather than to the form. Such a motion is solely directed to the inquiry of whether or not the pleading, considered as a whole, 'fails to state a cause of action'. Looseness, verbosity and excursiveness, must be overlooked on such a motion if any cause of action can be spelled out from the four corners of the pleading. (See Siegel, 38 St. John's Law Review, supra, p. 205.) ¹

It was well settled and still is, of course, the rule that a pleading will not be dismissed for insufficiency merely because it is inartistically drawn. Where a pleading is attacked for alleged inadequacy in its statements, our inquiry should be limited to 'whether it states in some recognizable form any cause of action known to our law' (Dulberg v. Mock, 1 N.Y.2d 54, 56, 150 N.Y.S.2d 180, 181, 133 N.E.2d 695, 696). 'However imperfectly, informally or even illogically the facts may be stated, a complaint, attacked for insufficiency, is deemed to allege 'whatever can be implied from its statements by fair and reasonable intendment.' Kain v. Larkin, 141 N.Y. 144, 151, 36 N.E. 9 The question for us is whether the requisite allegations of any valid cause of action cognizable by the state courts 'can be fairly gathered from all the averments.'' (Condon v. Associated Hospital Service of New York, 287 N.Y. 411, 414, 40 N.E.2d 230, 231.)

Finally, every pleading question should be approached in the light of the CPLR enactment that pleadings 'shall be liberally construed. Defects shall be ignored if a substantial right of a party is not prejudiced.' ² (CPLR § 3026.) The general provision for liberal construction was contained in the former Civil Practice Act, but the last sentence quoted above was added new in CPLR with the intent to put teeth in the mandate for liberal construction. Thereby, the burden is expressly placed upon one who attacks a pleading for deficiencies in its allegations to show that he is prejudiced. It was thus sought to discourage time-consuming pleading attacks which were unlikely to result in a final disposition...