Cicciu v. 411 E. 57th Corp.

2024 NY Slip Op 34546(U)

• Court: New York Supreme Court, New York County
• Decided: December 23, 2024
• Docket: Index No. 655232/2023
• Status: Unpublished

Opinion

Cicciu v 411 E. 57th Corp. 2024 NY Slip Op 34546(U) December 23, 2024 Supreme Court, New York County Docket Number: Index No. 655232/2023 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 655232/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 12/23/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 655232/2023 ANNE MARIE CICCIU, MOTION DATE 12/04/2024 Plaintiff, MOTION SEQ. NO. 002 -v- 411 EAST 57TH CORPORATION, AKAM ASSOCIATES, DECISION + ORDER ON INC.,LOUIS R MOLINARO MOTION Defendant. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 were read on this motion to/for DISMISSAL .

Upon the foregoing documents, defendant Louis R. Molinaro’s motion to dismiss the

complaint is granted.

The instant action arises out of allegations of breach of contract and fraudulent

concealment during the sale and closing of shares of a cooperative apartment. Plaintiff contends

that defendants concealed a policy requiring a shareholder to replace all the windows in the

apartment before renovations can occur.

Legal Standard

It is well-settled that on a motion to dismiss for failure to state a cause of action pursuant

to CPLR § 3211(a)(7), the pleading is to be liberally construed, accepting all the facts as alleged

in the pleading to be true and giving the plaintiff the benefit of every possible inference. See

Avgush v Town of Yorktown, 303 AD2d 340 [2d Dept 2003]; Bernberg v Health Mgmt. Sys., 303

AD.2d 348 [2d Dept 2003]. Moreover, the Court must determine whether a cognizable cause of

action can be discerned from the complaint rather than properly stated. Matlin Patterson ATA

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Holdings LLC v Fed. Express Corp., 87 AD3d 836, 839 [1st Dept 2011]. “The complaint must

contain allegations concerning each of the material elements necessary to sustain recovery under

a viable legal theory.'" Id.

“In a motion to dismiss pursuant to CPLR 3211 (a) (1), the defendant has the burden of

showing that the relied-upon documentary evidence resolves all factual issues as a matter of law,

and conclusively disposes of the plaintiff's claim" (Fortis Fin. Servs., LLC v Fimat Futures USA,

Inc., 290 AD2d 383, 383 [1st Dept 2002] internal quotations and citations omitted). Further,

dismissal pursuant to CPLR § 3211(a)(1) is warranted where documentary evidence

“conclusively establishes a defense to the asserted claims as a matter of law.” Gottesman Co. v

A.E.W, Inc., 190 AD3d 522, 24 [1st Dept 2021].

Discussion

Preliminarily, the Court rejects plaintiff belated attempt at a cross-motion. The purported

cross-motion was not properly noticed as a cross-motion and was late, filed on the return date of

the instant motion, thus the Court will deem the filed papers only as opposition to the underlying

motion, notwithstanding the tardiness of the submission.

Defendant Molinaro has established prima facie entitlement to dismissal of the complaint

as against it. The complaint fails to indicate what, if any, provision was breached by defendant

Molinaro, nor does plaintiff address the disclaimer in the contract that no “representations and

covenants” shall survive closing. See NYSCEF Doc. 23.

Plaintiff’s opposition is insufficient to defeat the instant motion and further emphasizes

that the complaint fails to state a cause of action as against defendant Molinari. Although

plaintiff contends that an affidavit is submitted to amplify the pleadings, the document filed at

NYSCEF 28, is an email and not signed by the plaintiff.

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Finally, the Court does find this action to be frivolous, as there are multiple bases for

dismissal of this action, which the plaintiff’s unsworn submission fails to refute. The Court

therefore find that the plaintiff should reimburse the movant for the Court costs of making this

motion. Accordingly, it is hereby

ORDERED that the complaint is dismissed in its entirety as against defendant Louis R.

Molinaro; and it is further

ORDERED that the action is severed and continued against the remaining defendants; and

it is further

ORDERED that the caption be amended to reflect the dismissal and that all future papers

filed with the court bear the amended caption; and it is further

ORDERED that counsels for the moving parties shall serve a copy of this order with notice

of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General

Clerk’s Office (60 Centre Street, Room 119), who are directed to mark the court’s records to reflect

the change in the caption herein; and it is further

ORDERED that such service upon the Clerk of the Court and the Clerk of the General

Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on

Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-

Filing” page on the court’s website at the address www.nycourts.gov/supctmanh); and it is further

ORDERED that plaintiff shall reimburse moving defendant Louis R. Molinaro for the

Court costs of making this motion not more than 30 days following service of this Order with

notice of entry.

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12/23/2024 DATE LYLE E. FRANK, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

□ □ X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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