Megaris Furs, Inc. v. Gimbel Bros., Inc.

CourtNew York Supreme Court — Appellate Division
Writing for the CourtBefore MILONAS
Citation172 A.D.2d 209,568 N.Y.S.2d 581
Decision Date04 April 1991
PartiesMEGARIS FURS, INC., Plaintiff-Appellant, v. GIMBEL BROTHERS, INC., Defendant-Respondent. Arthur EDELL, et al., Plaintiffs-Appellants, v. GIMBEL BROTHERS, INC., Defendant-Respondent-Counterclaim-Plaintiff, v. Arthur EDELL, et al., Counterclaim-Defendants.

Page 581

568 N.Y.S.2d 581
172 A.D.2d 209
MEGARIS FURS, INC., Plaintiff-Appellant,
v.
GIMBEL BROTHERS, INC., Defendant-Respondent.
[and one other action]
Arthur EDELL, et al., Plaintiffs-Appellants,
v.
GIMBEL BROTHERS, INC., Defendant-Respondent-Counterclaim-Plaintiff,
v.
Arthur EDELL, et al., Counterclaim-Defendants.
Supreme Court, Appellate Division,
First Department.
April 4, 1991.

Page 582

Budd Larner Gross Rosenbaum Greenberg & Sade, P.C. (Marc Z. Edell, of counsel; Brian J. Levine and Mary Ellen Meyers with him on the briefs), Short Hills, N.J., for Megaris Furs, Inc., Arthur Edell and Ethel Edell, appellants and cross-respondents.

Chadbourne & Parke (Charles K. O'Neill, Robert S. Pruyne, Cheryl A. Hughes and Marla Hassner, of counsel), New York City, for Gimbel Brothers, Inc., BATUS Inc., and BATUS Retail, Inc., respondents and cross-appellants.

Before MILONAS, J.P., and ROSENBERGER, ASCH, SMITH and RUBIN, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County (David H. Edwards, J.), entered December 19, 1989, which granted defendant's cross-motion for summary judgment as to plaintiff's first, second and third causes of action, granted plaintiff's motion to amend the complaint to assert the proposed fourth and fifth causes of action, and denied leave to amend the complaint to assert the proposed fourth and fifth causes of action, and denied leave to amend the complaint to assert the proposed first, second, third, sixth, seventh, eighth and ninth causes of action, unanimously modified, on the law, to the extent of denying leave to amend the complaint and, except as so modified, affirmed, without costs.

Order of the Supreme Court, New York County (Carmen Beauchamp Ciparick, J.), entered on or about November 16, 1989 which granted defendants' cross-motion for summary judgment as to plaintiffs' first, second and third causes of action, granted plaintiffs' motion to amend the complaint to assert the proposed third, fourth and seventh causes of action, and denied leave to amend the complaint to assert the proposed first, second, fifth, sixth, eighth and ninth causes of action, unanimously modified, on the law, to the extent of denying leave to amend the complaint and, except as so modified, affirmed, without costs.

While leave to amend a pleading is freely granted (CPLR 3025[b]; Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 471 N.Y.S.2d 55, 459 N.E.2d 164), this court has consistently held that, in order to conserve judicial resources, an examination of the underlying merits of the proposed causes of action is warranted (Brennan v. City of New York, 99 A.D.2d 445, 470 N.Y.S.2d 621; East Asiatic Co. v. Corash, 34 A.D.2d 432, 312 N.Y.S.2d 311). Leave to amend will be denied where the proposed pleading fails to state a cause of action (Crimmins Contr. Co. v. City of New York, 74 N.Y.2d 166, 544 N.Y.S.2d 580, 542 N.E.2d 1097; Stroock & Stroock & Lavan v. Beltramini, 157 A.D.2d 590, 550 N.Y.S.2d 337). To make out a cause of action for fraud, this court has stated that "a party must allege representation of a material existing fact, falsity, scienter, deception and injury [citing Reno v. Bull, 226 N.Y. 546, 550, 124 N.E. 144.] Furthermore, each of these essential elements must be supported by factual allegations sufficient to satisfy CPLR 3016(b), which [172 A.D.2d 210] requires, in the case of a cause of action based on fraud, that 'the circumstances constituting the wrong shall be stated in detail.' CPLR 3016(b) 'imposes a more

Page 583

stringent standard of pleading than the generally applicable "notice of the transaction" rule of CPLR 3013, and complaints based on fraud * * * which fail in whole or in part to meet this special test of factual pleading have consistently been dismissed'. (Lanzi v. Brooks, 54 A.D.2d 1057, 1058, 388 N.Y.S.2d 946, affd. 43 N.Y.2d 778, 402 N.Y.S.2d 384, 373 N.E.2d 278; see, 60 NY Jur2d, Fraud and Deceit, § 227.)" (Edison Stone Corp. v. 42nd St. Dev. Corp., 145 A.D.2d 249, 257, 538 N.Y.S.2d 249; see also, New York Fruit Auction Corp. v. City of New York, 81 A.D.2d 159, 161, 439 N.Y.S.2d 648; cf., Fidelity and Deposit Co. of Md. v. Arthur Andersen & Co., 131 A.D.2d 308, 515 N.Y.S.2d 791).

The respective pleadings in these two actions, consolidated for appeal, each state a cause of action for breach of contract which, with the addition of suitable verbiage, is transmogrified into eight additional causes of action which sound in tort, ranging from fraud to intentional interference with contractual relations. In each case, the underlying contract action is without merit, and amendment of the complaints should have been denied in the entirety and the complaints dismissed.

Plaintiffs operated concessions under license from defendant in its department stores--Megaris, a fur salon and the Edells, a health food department. These actions arise from the closing of Gimbel Brothers' ("Gimbels") department stores and termination of the agreements under which the respective plaintiffs operated. The gravaman of the dispute is the application of a clause contained in a paragraph entitled "Destruction of Space" which provides: "In the event of a fire or any other casualty of any kind whatsoever which may result in the substantial destruction of any Space then occupied by Licensee or if Gimbels shall discontinue or dispose of the business now conducted by it in any of the Stores, the license granted pursuant to this Agreement hereunder shall terminate * * * and * * * neither party shall be liable to the other for any loss or damage resulting therefrom." Plaintiffs argue that, simply because of the context, this clause should be applied only to...

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87 practice notes
  • Landon v. Kroll Lab. Specialists, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • 22 Noviembre 2011
    ...see Board of Mgrs. of the Chelsea 19 Condominium v. Chelsea 19 Assoc., 73 A.D.3d 581, 582, 905 N.Y.S.2d 8; Megaris Furs v. Gimbel Bros., 172 A.D.2d 209, 211, 568 N.Y.S.2d 581). Furthermore, a court enforcing a contractual obligation will ordinarily impose a contractual duty only on the prom......
  • Coughlan v. Jachney, 18-CV-2125(SJF)(AKT)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 20 Julio 2020
    ...cannot claim to have been defrauded into doing what it already was legally bound to do." Megaris Furs, Inc. v. Gimbel Bros., Inc. , 172 A.D.2d 209, 212, 568 N.Y.S.2d 581 (N.Y. App. Div. 1991) ; Vibes Int'l Inc., SAL v. Iconix Brand Grp., Inc. , No. 18-cv-11449, 2020 WL 3051768, at * 10 (S.D......
  • AT&T v. New York City Human Resources Admin., No. 89 Civ. 4569 (PKL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 6 Octubre 1993
    ...tort law, does not, without more, transform a simple breach of contract into a tort claim."); Megaris Furs, Inc. v. Gimbel Bros., Inc., 172 A.D.2d 209, 211, 568 N.Y.S.2d 581, 583 (1st Dep't 1991) (rejecting negligence claims as merely "representing an attempt to recast the breach of contrac......
  • Oi Tai Chan v. Soc'y of Shaolin Temple, Inc.
    • United States
    • United States State Supreme Court (New York)
    • 3 Noviembre 2010
    ...( Channel Master Corp. v. Aluminium Ltd. Sales, 4 N.Y.2d 403, 176 N.Y.S.2d 259, 151 N.E.2d 833 [1958]; Megaris Furs v. Gimbel Bros., 172 A.D.2d 209, 568 N.Y.S.2d 581 [1st Dept.1991] ). "An expression or prediction as to some future event, known by the author to be false or made despite the ......
  • Request a trial to view additional results
86 cases
  • Landon v. Kroll Lab. Specialists, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • 22 Noviembre 2011
    ...see Board of Mgrs. of the Chelsea 19 Condominium v. Chelsea 19 Assoc., 73 A.D.3d 581, 582, 905 N.Y.S.2d 8; Megaris Furs v. Gimbel Bros., 172 A.D.2d 209, 211, 568 N.Y.S.2d 581). Furthermore, a court enforcing a contractual obligation will ordinarily impose a contractual duty only on the prom......
  • Coughlan v. Jachney, 18-CV-2125(SJF)(AKT)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 20 Julio 2020
    ...cannot claim to have been defrauded into doing what it already was legally bound to do." Megaris Furs, Inc. v. Gimbel Bros., Inc. , 172 A.D.2d 209, 212, 568 N.Y.S.2d 581 (N.Y. App. Div. 1991) ; Vibes Int'l Inc., SAL v. Iconix Brand Grp., Inc. , No. 18-cv-11449, 2020 WL 3051768, at * 10 (S.D......
  • AT&T v. New York City Human Resources Admin., No. 89 Civ. 4569 (PKL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 6 Octubre 1993
    ...tort law, does not, without more, transform a simple breach of contract into a tort claim."); Megaris Furs, Inc. v. Gimbel Bros., Inc., 172 A.D.2d 209, 211, 568 N.Y.S.2d 581, 583 (1st Dep't 1991) (rejecting negligence claims as merely "representing an attempt to recast the breach of contrac......
  • Oi Tai Chan v. Soc'y of Shaolin Temple, Inc.
    • United States
    • United States State Supreme Court (New York)
    • 3 Noviembre 2010
    ...( Channel Master Corp. v. Aluminium Ltd. Sales, 4 N.Y.2d 403, 176 N.Y.S.2d 259, 151 N.E.2d 833 [1958]; Megaris Furs v. Gimbel Bros., 172 A.D.2d 209, 568 N.Y.S.2d 581 [1st Dept.1991] ). "An expression or prediction as to some future event, known by the author to be false or made despite the ......
  • Request a trial to view additional results

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