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SHEAR ENTERS., LLC v. COHEN

154608/19. Appeal No. 12301. Case No. 2020-01394.

189 A.D.3d 423 (2020)

137 N.Y.S.3d 306

2020 NY Slip Op 07149

Shear Enterprises, LLC, Respondent, v. Sam Cohen et al., Appellants.

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

Decided December 1, 2020.

Attorney(s) appearing for the Case

Heller Horowitz & Feit, P.C., New York ( Eli Feit of counsel), for appellant.

Louis Fogel & Associates, New York ( Louis Fogel of counsel), for respondent.

Concur—Manzanet-Daniels, J.P., Kapnick, Mazzarelli, Moulton, JJ.

The court properly denied defendants' motion to dismiss the cause of action for breach of contract. Contrary to defendants' contention, the complaint sufficiently alleges that plaintiff did not agree to a novation (see Griggs v Day, 136 N.Y. 152, 160 [1892]; Wasserstrom v Interstate Litho Corp., 114 A.D.2d 952, 954 [2d Dept 1985]). In the original complaint, plaintiff made clear that it intended to recoup the original down...

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