Delran v. Prada USA Corp.

Appellate Division of the Supreme Court of New York

Delran v. Prada USA Corp.

23 A.D.3d 308, 804 N.Y.S.2d 243

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 29, 2005

StatusPublished

Cited by2 cases

This text of 23 A.D.3d 308 (Delran v. Prada USA Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Delran v. Prada USA Corp., 23 A.D.3d 308, 804 N.Y.S.2d 243 (N.Y. Ct. App. 2005).

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Opinion

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered August 6, 2004, which, to the extent appealed from as limited by the briefs, dismissed count one of the complaint, pursuant to CFLR 3211 (a) (7), for failure to state a cause of action, unanimously affirmed, without costs.

While it is true that in considering a motion to dismiss brought pursuant to CFLR 3211 (a) (7), the court must presume the facts pleaded to be true and must accord them every favorable inference (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]; Hispanic AIDS Forum v Estate of Bruno, 16 AD3d 294, 295 [2005]), factual allegations that do not set forth a viable cause of action, or that consist of bare legal conclusions, are not entitled to such consideration (Skillgames, LLC v Brody, 1 AD3d 247, 250 [2003]; Caniglia v Chicago Tribune-N.Y. News Syndicate, 204 AD2d 233 [1994]).

In this matter, we agree with the motion court that plaintiffs allegations do not fall within the ambit of the statute and, therefore, fail to state a cause of action. Concur—Sullivan, J.P., Ellerin, Nardelli and Sweeny, JJ.

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Order, Supreme Court, New York County (Walter B. Tolub, J.), entered August 6, 2004, which, to the extent appealed from as limited by the briefs, dismissed count one of the complaint, pursuant to CFLR 3211 (a) (7), for failure to state a cause of action, unanimously affirmed, without costs.

While it is true that in considering a motion to dismiss brought pursuant to CFLR 3211 (a) (7), the court must presume the facts pleaded to be true and must accord them every favorable inference (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]; Hispanic AIDS Forum v Estate of Bruno, 16 AD3d 294, 295 [2005]), factual allegations that do not set forth a viable cause of action, or that consist of bare legal conclusions, are not entitled to such consideration (Skillgames, LLC v Brody, 1 AD3d 247, 250 [2003]; Caniglia v Chicago Tribune-N.Y. News Syndicate, 204 AD2d 233 [1994]).

In this matter, we agree with the motion court that plaintiffs allegations do not fall within the ambit of the statute and, therefore, fail to state a cause of action. Concur—Sullivan, J.P., Ellerin, Nardelli and Sweeny, JJ.

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Bluebook (online)

23 A.D.3d 308, 804 N.Y.S.2d 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delran-v-prada-usa-corp-nyappdiv-2005.

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