Opinion
September 30, 1965
Order entered December 4, 1964, denying defendant-appellant's motion to dismiss the complaint for insufficiency, unanimously reversed, on the law, with $30 costs and disbursements to defendant-appellant, and the motion granted, with $10 costs, and with leave however to plaintiff to apply to Special Term to serve an amended complaint on proper papers. ( Cushman Wakefield v. John David, Inc., 23 A.D.2d 827; CPLR 3211, subd. [e].) The complaint fails to allege facts to support the conclusory allegations of damages. The first cause of action fails to allege facts supporting the claim that plaintiff would have been entitled to recover the amounts here sought from the insurance companies under the policies in question except for appellant's alleged malpractice. (Cf. Vooth v. McEachen, 181 N.Y. 28; Schmitt v. McMillan, 175 App. Div. 799.) The second cause of action, against appellant as agent of Howburt Realty, Inc., and others, failed to allege any duty owing to the plaintiff. The third cause of action, grounded on the omission of Grayck, fails to allege facts constituting a cause of action against the appellant.
Concur — Botein, P.J., McNally, Stevens, Eager and Steuer, JJ.