Dean R. Pelton Co. v. Moundsville Shopping Plaza, Inc.

Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered January 23, 1990, which, inter alia, dismissed plaintiff’s fourth cause of action, unanimously affirmed, without costs. Plaintiff, a real estate brokerage firm, commenced this action to collect a commission allegedly due for having procured a prospective buyer for a shopping plaza. The defendants moved to dismiss the complaint for lack of in personam jurisdiction (CPLR 3211 [a] [8]). Although the IAS Court denied this aspect of the motion, it proceeded to dismiss the fourth cause of action of the complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7), a ground not specified in the notice of motion. (See, Keller v Levy, 265 App Div 723.) Nevertheless, where the wrong ground is designated but other CPLR 3211 (a) grounds do apply, the court may treat the motion as having specified the right ground and grant relief, absent prejudice, which has not been demonstrated (see, Siegel, NY Prac § 258). Assuming that all of the plaintiff’s allegations are true, the fourth cause of action, for conspiracy to deprive plaintiff of its commission, was properly dismissed on the ground that New York does not recognize conspiracy as an independent tort (Hickey v Travelers Ins. Co., 158 AD2d 112, 118). Concur— Milonas, J. P., Asch, Kassal and Rubin, JJ.