Sud v. Sud
| Citation | 621 N.Y.S.2d 37,211 A.D.2d 423 |
| Parties | In re Application of Chander S. SUD, Petitioner-Appellant, v. Ajay SUD, et al., Respondents-Respondents. |
| Decision Date | 05 January 1995 |
| Court | New York Supreme Court Appellate Division |
Before ROSENBERGER, J.P., and WALLACH, KUPFERMAN, ROSS and WILLIAMS, JJ.
Order, Supreme Court, New York County (Stephen Crane, J.), entered April 29, 1993, which, inter alia, granted defendants' Ajay Sud ("Ajay") and Cheng Yen Teh ("Cheng") motions pursuant to CPLR §§ 3211(a)(5), (a)(7), and (a)(8) to dismiss the plaintiff's amended complaint as against them, and order of the same court and justice, entered September 8, 1993, which inter alia, denied plaintiff's motion for renewal, unanimously affirmed, without costs.
Although on a motion addressed to the sufficiency of a complaint pursuant to CPLR 3211(a)(7), the facts pleaded are presumed to be true and accorded every favorable inference, nevertheless, allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence, are not entitled to such consideration (Mark Hampton, Inc. v. Bergreen, 173 A.D.2d 220, 570 N.Y.S.2d 799, lv. denied 80 N.Y.2d 788, 587 N.Y.S.2d 284, 599 N.E.2d 688).
The IAS court properly dismissed, as against defendant Ajay Sud, the plaintiff's amended complaint, purporting to set forth a cause of action for breach of a 1976 contract between the members of a New Delhi, India, family, as too vague and indefinite, and therefore unenforceable, for plaintiff's failure to allege, in nonconclusory language, as required, the essential terms of the parties' purported contract, including the specific provisions of the contract upon which liability is predicated (Chrysler Capital Corp. v. Hilltop Egg Farms, 129 A.D.2d 927, 928, 514 N.Y.S.2d 1002), whether the alleged agreement was, in fact, written or oral (Bomser v. Moyle, 89 A.D.2d 202, 205, 455 N.Y.S.2d 12), and the amount of financial support which defendant Ajay or other family members were required to provide or the length of time during which that support had to be provided before their contractual obligations concluded (see, Cobble Hill Nursing Home v. Henry & Warren Corp., 74 N.Y.2d 475, 482, 548 N.Y.S.2d 920, 548 N.E.2d 203).
The complaint was also properly dismissed as against defendant Ajay as unenforceable under the New York Statute of Frauds (General Obligations Law § 5-701[a][1], where, as here, the purported agreement to bring each of the Sud siblings to the United States and provide them with a graduate level education could not, by its terms, be fully performed within one year (see, D & N Boening,...
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