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DANIEL LEVINE v. BEATRICE R. O'MALLEY ET AL. (12/04/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


December 4, 1969

DANIEL LEVINE, APPELLANT,
v.
BEATRICE R. O'MALLEY ET AL., RESPONDENTS

Appeal from order of Erie Special Term granting motion to dismiss part of complaint in action to set aside deed.

Del Vecchio, J. P., Marsh, Gabrielli, Moule and Bastow, JJ. All concur, Moule, J., not participating.

Memorandum: The portion of the amended complaint that was dismissed by the order appealed from stated a recognizable cause of action -- that respondent, 2380 Delaware, Inc., intentionally and unjustifiably committed acts that interfered with existing contractual rights between appellant and the co-defendant. (Hornstein v. Podwitz, 254 N. Y. 443; see generally 5 Carmody-Wait 2d, New York Practice, ยง 29:760.) Furthermore, plaintiff has standing to seek relief by this independent action from the judgment decreeing specific performance of the contract between defendants 2380 Delaware, Inc. and Mrs. O'Malley. (CPLR 5015; 5 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5015.13; Bardach v. Mayfair-Flushing Corp., 49 Misc. 2d 380, 383, affd. 26 A.D.2d 620.) Although CPLR 5015 (subd. [a], par. 3) does not so specify the Advisory Committee's notes (3 Advisory Comm. Rep. on Practice and Procedure, p. 204 [1959]) make it clear that the fraud forming the basis for relief may be either extrinsic or intrinsic (5 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 5015.09).

Disposition

Order reversed, with costs to appellant against respondent, 2380 Delaware, Inc., and motion denied.

19691204

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