Cascons v. Frank

224 A.D.2d 247, 637 N.Y.S.2d 411

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 1996
• Status: Published

Opinion

—Order, Supreme Court, New York County (Joan Lobis, J.), entered November 18, 1994, denying the individual defendants’ motion to dismiss the complaint, unanimously affirmed, with costs and disbursements.

The IAS Court properly denied the individual defendants’ motion to dismiss the complaint for failure to state a cause of action (CPLR 3211 [a] [7]) and on the basis of a defense founded upon documentary evidence (CPLR 3211 [a] [1]). The complaint clearly alleges a viable claim that the individual defendants retained the plaintiff law firm to provide legal services for them as well as the corporate defendant, Robin Enterprises, Inc. While the individual defendants’ assertion that only the corporate defendant retained the plaintiff law firm presents a triable issue of fact, it in no way impugns the sufficiency of the complaint’s allegations. Rather than dispose of the retention issue, the documentary evidence relied upon to refute the claim graphically demonstrates, in our view, the need for a trial to resolve the issue. Concur — Sullivan, J. P., Wallach, Ross and Williams, JJ.