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LITTLE REST TWELVE, INC. v. ZAJIC

492, 650209/10.

137 A.D.3d 540 (2016)

27 N.Y.S.3d 142

2016 NY Slip Op 01767

LITTLE REST TWELVE, INC., Plaintiff, v. NINA ZAJIC et al., Defendants. NINA ZAJIC et al., Third-Party Plaintiffs-Appellants, v. MARTIN RUSSO et al., Third-Party Defendants-Respondents.

Appellate Division of the Supreme Court of New York, First Department.

Decided March 15, 2016.

As discussed below, the motion to dismiss the third-party complaint was correctly granted. However, since it is based on a failure to state a cause of action, the dismissal should be without prejudice to apply upon a proper showing for leave to plead again (Morpheus Capital Advisors LLC v UBS AG, 105 A.D.3d 145, 154 [1st Dept 2013], revd on other grounds 23 N.Y.3d 528 [2014]).

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