Opinion
October 27, 1964
Order, entered May 28, 1964, denying defendants' motion pursuant to CPLR 3211 (subd. [a], par. 7) to dismiss the second cause of action in the complaint on the ground that it fails to state a cause of action, unanimously reversed, on the law, with $30 costs and disbursements to defendants-appellants against plaintiff-respondent, and the motion granted, with $10 costs. Neither the allegations of the complaint nor the supporting affidavit submitted pursuant to CPLR 3211 (subd. [c]) establish that the alleged representation of expectation with respect to a future event was then known to be false. The falsity is inferred solely from the failure of the event to occur. This is not enough. (See 24 N.Y. Jur., Fraud and Deceit, §§ 50-57, but especially § 57.)
Concur — Botein, P.J., Breitel, Rabin, Eager and Steuer, JJ.