This is an action by plaintiff to recover for fraud, negligent misrepresentation, and tortious misrepresentation. Plaintiff is the mother of three children, the first two of whom were born with serious birth defects. Subsequent to plaintiff becoming pregnant with her third child, she determined to preserve the umbilical cord blood from her third delivery in [*2]order to provide stem cells for the care of her other two children. Prior to the delivery, plaintiff arranged with her obstetrician (a rotating group of physicians associated with Vassar Brothers Medical Center) to collect the cord blood immediately after the birth, for storage by ViaCord, Inc.

During the delivery of plaintiff's child on September 14, 2004, an attending nurse reminded her assigned physician, Dr. Lance D. Murphy, of plaintiff's intention to cryopreserve the cord blood. Dr. Murphy then inquired who would store the blood; when plaintiff identified ViaCord, Dr. Murphy refused to collect the blood, based on a letter he and his colleagues had received from defendant Pharmastem, and authored by defendant Nicholas Didier, threatening a patent infringement action for collection of blood for storage by ViaCord.

The letter, which purported to comment on a patent infringement action then pending in the United States District Court for the District of Delaware, allegedly contained false and misleading statements concerning the status of that action, including that the District Court therein had ruled that patent infringement could include acts such as those which Dr. Murphy had been asked to perform (where it had not); and that the jury therein had unanimously held that ViaCord had willfully infringed on Pharmastem's patents (true but misleading, since at the time of the statement a motion was pending before the Court for a Judgment of non-infringement as a matter of law, which motion was subsequently [on September 15, 2004] granted by the Court.) Indeed, on July 2, 2004, the District Court enjoined defendants from sending the letter to physicians, finding that it "contains false and misleading statements."

Defendant now moves to dismiss the complaint pursuant to CPLR § 3211 (a) 7, for failure to state a claim. As an initial matter, the Court notes that defendant's application is defective, as it fails to include the pleadings in the instant matter. (See CPLR § 2214 [c]; Part Rules I [d] 1.) In any event, as a substantive matter,

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must determine, accepting as true the factual averments of the complaint and according the plaintiff the benefit of all favorable inferences, whether the plaintiff can succeed upon any reasonable view of the facts as stated (see Leon v. Martinez, 84 NY2d 83, 87-88, 614 NYS2d 972, 638 NE2d 511; Dye v. Catholic Med. Ctr. of [*3]Brooklyn and Queens, 273 AD2d 193, 710 NYS2d 83).

Based upon the foregoing, it is hereby

ORDERED, that the motion is denied for the reasons herein stated; and, it is further

ORDERED, that the parties are directed to appear for Preliminary Conference before the DCM Part, Room 1002, on July 13, 2006 at 9:30 a.m. for a Preliminary Conference.

The foregoing constitutes the Opinion, Decision, and Order of the Court.

Dated: White Plains, New York

June , 2006

__________________________________

HON. JOHN R. LA CAVA, J.S.C. [*4]