Maggi v. Maggi
| Decision Date | 30 November 1992 |
| Citation | 187 A.D.2d 722,590 N.Y.S.2d 293 |
| Parties | In the Matter of Louis V. MAGGI, etc., Respondent, v. Regina MAGGI, etc., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Cerrato, Sweeney, Cohn, Stahl & Vaccaro, White Plains (Carl Stahl, of counsel), for appellant.
Peter F. DeGaetano, New York City, for respondent.
Before MANGANO, P.J., and THOMPSON, EIBER and RITTER, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to CPLR article 77 for the removal of a trustee, the termination of a trust, and for an accounting, the appeal is from (1) so much of an order of the Supreme Court, Kings County (Williams, J.), dated May 7, 1990, as denied the appellant's motion, inter alia, to dismiss the petition pursuant to CPLR 3211(a)(7) and (2) so much of an order of the same court, dated July 24, 1990, as denied the appellant's motion (a) for leave to renew her prior motion to dismiss pursuant to CPLR 3211(a)(7), and (b) to dismiss the petition pursuant to CPLR 3211(a)(5).
ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.
Although we agree with the appellant's contention that the instant proceeding is beyond the scope of CPLR article 77 (see, Gregory v. Wilkes, 26 Misc.2d 641, 642, 205 N.Y.S.2d 405; see also, Matter of Reilly, 17 Misc.2d 1077, 156 N.Y.S.2d 478, affd. 3 A.D.2d 1001, 165 N.Y.S.2d 431), we reject her argument that as a result, the proceeding must be dismissed. Where a court has obtained jurisdiction over the parties, a civil judicial proceeding ought not to be dismissed solely because it is not brought in the proper form, but the court should make whatever order is required for its proper prosecution (see, CPLR 103[c]; see also, Matter of O'Shea, 28 A.D.2d 977, 283 N.Y.S.2d 396; Matter of Phalen v. Theatrical Protective Union No. 1, 22 N.Y.2d 34, 290 N.Y.S.2d 881, 238 N.E.2d 295; Matter of Lakeland Water Dist. v. Onondaga County Water Auth., 23 N.Y.2d 801, 297 N.Y.S.2d 304, 244 N.E.2d 873).
We find unpersuasive the appellant's contention that the pleading deficiencies of the petition require its dismissal. The allegations set forth in the petition adequately established the existence of a cause of action to recover damages for fraud (see, Matter of Gordon v. Bialystoker Center, 45 N.Y.2d 692, 698, 412 N.Y.S.2d 593, 385 N.E.2d 285; Cowee v. Cornell, 75 N.Y. 91, 99-100; Matter of Paul, 105 A.D.2d 928, 482 N.Y.S.2d 121; see also, Jered Constr. Corp. v. N.Y.C. Tr. Auth., 22 N.Y.2d...
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