Bekas v. Valiotis

90 A.D.3d 687, 934 N.Y.2d 327

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 2011
• Status: Published

Opinion

The Supreme Court erred in granting that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1). The documentary evidence submitted by the defendants did not utterly refute the plaintiffs allegations, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see also Fontanetta v John Doe 1, 73 AD3d 78, 86 [2010]; Morgenthow & Latham v Bank of N.Y. Co., 305 AD2d 74 [2003]; Berger v Temple Beth-El of Great Neck, 303 AD2d 346 [2003]).

Similarly, the Supreme Court erred in granting that branch of the defendants’ motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7), as the plaintiff adequately pleaded a cause of action (see Steve Elliot, LLC v Teplitsky, 59 AD3d 523 [2009] ).

The parties’ remaining contentions are without merit. Mastro, A.EJ., Chambers, Austin and Miller, JJ., concur.