Dreifus v. Heimeshe Bakery Corp.

Appellate Division of the Supreme Court of New York

Dreifus v. Heimeshe Bakery Corp.

49 A.D.3d 591, 852 N.Y.2d 792

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

DecidedMarch 11, 2008

StatusPublished

Cited by1 cases

This text of 49 A.D.3d 591 (Dreifus v. Heimeshe Bakery 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

Dreifus v. Heimeshe Bakery Corp., 49 A.D.3d 591, 852 N.Y.2d 792 (N.Y. Ct. App. 2008).

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Opinion

[592]*592“On a motion to dismiss pursuant to CPLR 3211 [(a) (7)], the pleading is to be afforded a liberal construction (see CPLR 3026). We accept the facts as alleged in the complaint as true, accord [the] plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Here, even after according the plaintiff the benefit of every possible inference, we conclude that the sixth cause of action fails to state any cognizable legal ground for the recovery of damages against the defendants Heimeshe Cof, Inc., doing business as Ostrovitsky Bakery, Yair Ostrovitsky, and Jacob Ostrovitsky (see Widman v Rosenthal, 40 AD3d 749 [2007]). Accordingly, the Supreme Court should have granted that branch of the motion which was to dismiss the sixth cause of action insofar as asserted against those defendants.

The parties’ remaining contentions are without merit. Lifson, J.P, Ritter, Florio and Garni, JJ., concur.

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[592]*592“On a motion to dismiss pursuant to CPLR 3211 [(a) (7)], the pleading is to be afforded a liberal construction (see CPLR 3026). We accept the facts as alleged in the complaint as true, accord [the] plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Here, even after according the plaintiff the benefit of every possible inference, we conclude that the sixth cause of action fails to state any cognizable legal ground for the recovery of damages against the defendants Heimeshe Cof, Inc., doing business as Ostrovitsky Bakery, Yair Ostrovitsky, and Jacob Ostrovitsky (see Widman v Rosenthal, 40 AD3d 749 [2007]). Accordingly, the Supreme Court should have granted that branch of the motion which was to dismiss the sixth cause of action insofar as asserted against those defendants.

The parties’ remaining contentions are without merit. Lifson, J.P, Ritter, Florio and Garni, JJ., concur.

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Bluebook (online)

49 A.D.3d 591, 852 N.Y.2d 792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dreifus-v-heimeshe-bakery-corp-nyappdiv-2008.

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