Cuglietto v. Ferone

Feb 28, 2000
Versions:269 A.D.2d 556
703 N.Y.S.2d 752
2000 N.Y. App. Div. LEXIS 2135

—In an action, inter alia, to set aside conveyances of real property, the plaintiffs appeal from an order of the Supreme Court, Westchester County (DiBlasi, J.), entered March 19, 1999, which denied their motion for leave to replead pursuant to CPLR 3211 (e).

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the plaintiffs’ motion for leave to replead pursuant to CPLR 3211 (e). The plaintiffs’ motion was not made in connection with a motion by the defendants to dismiss the complaint, as the complaint had already been dismissed. Moreover, the plaintiffs did not submit the requisite proof for a CPLR 3211 (e) motion (see, 527 Smith St. Brooklyn Corp. v Bay side Fuel Oil Depot Corp., 262 AD2d 278), and, in any event, the proposed new complaint did not allege fraud pursuant to Debtor and Creditor Law § 276 in sufficient detail (see, CPLR 3016 [b]; Menaker v Alstaedter, 134 AD2d 412). O’Brien, J. P., Friedmann, Florio and Schmidt, JJ., concur.