Sheepshead Cycle Shop, Inc. v. Cuevas Bicycles, Ltd.

In an action to recover damages for fraud, defendant Angelo Finocchiaro appeals from an order of the Supreme Court, Kings County, dated June 10, 1977, which denied his motion to dismiss the complaint for failure to state a cause of action. Order affirmed, with $50 costs and disbursements. Plaintiff-respondent’s allegations are sufficient to constitute a cause of action to recover damages for fraud and to apprise appellant of what is to be established at the trial. The five elements that constitute a cause of action for fraud are pleaded (see Ochs v Woods, 221 NY 335, 338; accord Channel Master Corp. v Aluminum Ltd. Sales, 4 NY2d 403) and they are sufficiently particularized to give appellant notice of the transactions or occurrences intended to be proved (see CPLR 3013; 3016, subd [b]; Foley v D’Agostino, 21 AD2d 60, 64). They are not the "bare allegations of fraud” that have been held to be insufficient to withstand a motion to dismiss a pleading (see Meltzer v Klein, 29 AD2d 548). Whether plaintiff can establish the allegations of its complaint is "necessarily reserved for trial” (see Channel Master Corp. v Aluminum Ltd. Sales, supra, p 408; cf. Brady & Co. v Concrete Plank Co., 56 AD2d 591). Latham, J. P., Rabin, Gulotta and Cohalan, JJ., concur.