Core Scaffold Sys. Inc. v. City Wide Bldrs. Grp Inc.

2025 NY Slip Op 31788(U)

• Court: New York Supreme Court, Kings County
• Decided: May 14, 2025
• Docket: Index No. 525946/2024
• Status: Unpublished

Opinion

Core Scaffold Sys. Inc. v City Wide Bldrs. Grp Inc. 2025 NY Slip Op 31788(U) May 14, 2025 Supreme Court, Kings County Docket Number: Index No. 525946/2024 Judge: Anne J. Swern 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. FILED: KINGS COUNTY CLERK 05/16/2025 03:49 PM INDEX NO. 525946/2024 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/16/2025

At an IAS Trial Term, Part75 of the Supreme Court of the State ofNew York, Kings County, at the Courthouse located at 360Adams Street, Brooklyn;New York on the 14th day of May 2025. ·

PRE SENT: HON. ANNE J. SWERN, J.S.C.

CORE SCAFFOLD SYSTEMS INC., DECISION & ORDER

Plaintiff(s), Index No:: 525946/2024

-against- CalendarNo.: 13

CITY WIDE BUILDERS GRP INC., Motion Seq.: MS00l RACHELGOTTLIEH, and MOSES FREUND,

Defendant(s).

Recitation ofthefollowingpapers as tequiredby CPLR2219(a): Papers Numbered Notice of Motion, Affirmation, Affidavits and Exhibits (NYSCEF 4-12) ............................ ;..................... ,.......1, 2 Affirmation and Exhibits jn Opposition (NYSCEF 13'-19) ......... ,....................... .3 Reply Memorandum ofLaw (NYSCEF 21) ..................... ,... , .... ,............ '. .... ,....... .4

Upon theforegoingpapers gndafter oral a,:gument; the decision and order ofthe Court

is as follows:

It is undisputed that this is an action seeks to recover damages based on a "72-hout

cancellc.i.tion" claµse within two separate contracts between the parties. The complaint alleges

four causes of action. Plaintiff's first two caus.es of action seek payment of the 10% cancellation

fee for each contract since defendant cancelled oµtside the 72-hour period. The thlrd cause of

action seeks to e_nforce the personal guaranty executed by defendant Gottlieb and the fourth

cause of aciion :;eeks damages sounding in fraud b~~ed. on defendants falsely disputing a

$28 ;850.00 credit card charge representing paynieµt to plaintiff for one· of tlle contracts.

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Defendants now move to dismiss this action pursuantto CPLR§3211 [a] [lJand [7]

arguing that the contracts were prnpedy·cancelledwithin the 72-hour period. In support of the

motion, defendants submit an affidavit and emails between the parties, In opposition, plaintiff

also submits an affidayit and emails.

a) CPLR § 3211 [al [11

"A motion pursuant to CPLR § 3211 [a] [l] to dismiss the complaint on the gtoW1d that

the action is barred by documentary evidence may be· [appropriately] granted only where the·

documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively

establishing a defense, as a matter of law" (Karpovichv City ofNew York, l62AD3d 996, 997

[2d Dept 2018]citing Mawerev Landau, 130 AD3d 986, 987 [2d Dept2015];seealso Beal Sav,

Bank v Sommer, 8 NY3d 318, 324 [2007] [The conStruction ofan unambiguous contract is a

matter oflaw;] artd Goshen v Mutual Life Insurance Co. ofN. Y., 98 NY2d 314, 326 [2002]). "To

constitute 'documentary' evidence, the evidence must be unambiguous, authentic, and

undeniable, such asjudicialrecordsanddocumentsreflecting out".'.of-court transaetions such as

mortgages, deeds; contracts, .md other papers; the contents of which are essentially undeniable;'

(Karpovich v City ofNew York, 162AD3dat997'-998;seeProttvLewin &Baglio,150AD3d

908, 909 [2dDept2017]).

Affidavits submitted in support .of such a motion do not qualify as documentary evidence

because their "contents can be controverted by other evidence, such as another affidavit''

(Phi/!ips.v Taco Bell Corp., 152AD3d 806, 807 [2d Dept 2017]; Pratt v Lewin & Baglio, 150

AD3d at 909). However, emails·canbe documentary evidence thatwhen cortsidereci as part of·

the totality ofthe·docuinentary evidence, sµpport aJavorable inference in a plaintiff's favor and.a

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denial of defe11danfs motion to disrniss (see Ko/chins v EvolutionJvfarkets, Inc., 31 NY3d 100,

105 [2018]).

b) CPLR§3211 Ta] [71

Plaintiffs may submit affidavits in opposition to a motion to dismiss pursuant to CPLR

§ 3211 [a] [7Jbufare not obligatedto do so to avoid a dismi1,sal (See Rove/lo v Orofino Realty

Co., 40 NY2d 631,635 [1976]). Therefore, plaintiff may stand on the pleadings alone,.

''confident that its allegations are sufficient to state all of the necessary elements of a cognizable

cause of action" to survive a motfon to dismiss under CPLR § 3211 [a] [7]{id ). When

determining a motion to dismiss pursua:ntto CPLR § 3211 Ia] [7], the Court must accept the

factual allegations in the complaint as true a:nd ''accord plaintiffs the benefit of every possible

favorable. inference and determine only·whether the facts as alleged fit into tmycognizable legal

theory" (Leon vMartinez, 84 NY2d 83, 88 [1994]).

However, ifthe Court considers evidentiary material outside the pleadings and the motion

is not converted to one for summary judgment, "the question becomes whether the pleader has a

cause of action, not whether the pleader has stated one and, unless it has been shown that a

material fact· as· claimed by the pleader is not a fact at all, and unless it can be said that no

significant dispute exists regarding it, [a] dismissal should not [be granted]" (Board o/Mgrs. of

100 Congress Condominium v SDS Congress, LLC, 152 AD3d 4 78, 480 [2d Dept. 2017]\

Analysis

Here, both parties haye mpved outside ofthe pleadings and sµbmitt\!d .competing

affidavits and emails as evidimce; Therefore, .defendants' emails submitted iq sµpport the motio11

do not constitute evidence that utterly refutes the plaintiff's factual allegations and conclµsively

establish a defense as .a matter oflaw (see Katpovich v Ctty ofNew York, 162,A.D3 d 997 citing

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Mawere v Landau, 130 AD3d987; CPLR § 3211 [a) [l]); Moreover, accepting the factual

allegations in the complaint and plaintiff's affidavit as true and according· plaintiff the benefit of

every possible favorable inference, the facts fit within a cause of action for breach of contract

(see Leonv Martinez, 84 NY2d 88; CPLR § 3211 [a] [7]).

Accordingly, it is hereby

ORDERED that defendants 1 motion for an order pursuant to CPLR § 321 l [al [1] and [7]

is denied.

This constitutes the decision and order of the Court.

Hon. Anne . Swern, J.S.C. Dated: 5/14/2025 For Clerks use only: MG _ _

MD - - Motion seq.# _ _ __

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