91 A.D.2d 939 | N.Y. App. Div. | 1983
— Order of the Supreme Court, New York County (Gomez, J.), entered January 6,1982 which denied defendants’ motion to dismiss the complaint and which modified plaintiff’s discovery demand to the extent only that defendants shall not be required to produce documents already in possession of plaintiff’s counsel unanimously reversed, on the law, without costs, and defendants’ motion to dismiss plaintiff’s complaint pursuant to CPLR 3211 (subd [a], par 7) is granted without prejudice to an application by plaintiff to Special Term pursuant to CPLR 3211 (subd [e]) for leave to serve an amended complaint. The amended complaint in the action, which contains 130 paragraphs, purports to set forth in a single cause, claims for breach of contract, fraud, for the imposition of a constructive trust and for an accounting. Additionally, and in the same cause, it endeavors to set forth a derivative action on behalf of Hamilton Pierce Company, Inc. (Hamilton). In brief, the amended complaint alleged that plaintiff and Michael Clinger entered into an oral joint venture to