Flexo-Craft Prints, Inc. v. HBE Leasing Corp.

In an action to recover damages based on fraud, the defendant appeals from an order of the Supreme Court, Kings County (Held, J.), dated May 12, 1989, which denied its motion to dismiss the amended complaint. Ordered that the order is affirmed, with costs. [666] On this appeal, the defendant challenges the Supreme Court’s determination which denied its motion to dismiss the amended complaint. The court concluded that a valid cause of action based on fraud was stated therein. We agree with the defendant that a fraud cause of action was not alleged by the plaintiff (see, CPLR 3016 [b]; Glassman v Catli, 111 AD2d 744). Nevertheless, we find that the allegations in the amended complaint sufficiently set forth a cause of action to recover an alleged monetary overpayment made by the plaintiff to the defendant. Accordingly, dismissal of the amended complaint was not warranted. Bracken, J. P., Lawrence, Eiber, Harwood and Rosenblatt, JJ., concur.