Estate of Spitz v. Pokoik

Appellate Division of the Supreme Court of New York

Estate of Spitz v. Pokoik

78 A.D.3d 402, 910 N.Y.S.2d 67

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

DecidedNovember 4, 2010

StatusPublished

This text of 78 A.D.3d 402 (Estate of Spitz v. Pokoik) 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

Estate of Spitz v. Pokoik, 78 A.D.3d 402, 910 N.Y.S.2d 67 (N.Y. Ct. App. 2010).

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Opinion

[403]*403Order, Supreme Court, New York County (Marilyn Shafer, J.), entered June 24, 2009, which, insofar as appealed from, granted defendants’ cross motion to dismiss plaintiffs’ fourth cause of action, unanimously affirmed, with costs.

Affording the complaint a liberal construction, accepting the facts alleged therein as true, according plaintiff estate the benefit of every possible favorable inference, and determining that the facts alleged fit within a cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), dismissal of the fourth cause of action nonetheless was proper. Defendants’ written offer stated that plaintiffs decedent Saul Spitz could manage the property “act[ing] alone or retaining] your own management company at your own expense.” Even assuming that the phrase “your own management company” can be construed as “a management company,” rather than a management company in which decedent had an ownership interest, decedent’s purported acceptance designated an individual to manage the property rather than a management company. Thus, there was no valid acceptance of the offer and the breach of contract claim properly was dismissed. As decedent’s estate seeks an accounting with respect to decedent’s interest in the property elsewhere in the complaint, the dismissal of the fourth cause of action in its entirety causes no prejudice.

We have considered plaintiffs’ remaining arguments and find them unavailing. Concur — Andrias, J.P., McGuire, Moskowitz, Freedman and Román, JJ.

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[403]*403Order, Supreme Court, New York County (Marilyn Shafer, J.), entered June 24, 2009, which, insofar as appealed from, granted defendants’ cross motion to dismiss plaintiffs’ fourth cause of action, unanimously affirmed, with costs.

Affording the complaint a liberal construction, accepting the facts alleged therein as true, according plaintiff estate the benefit of every possible favorable inference, and determining that the facts alleged fit within a cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), dismissal of the fourth cause of action nonetheless was proper. Defendants’ written offer stated that plaintiffs decedent Saul Spitz could manage the property “act[ing] alone or retaining] your own management company at your own expense.” Even assuming that the phrase “your own management company” can be construed as “a management company,” rather than a management company in which decedent had an ownership interest, decedent’s purported acceptance designated an individual to manage the property rather than a management company. Thus, there was no valid acceptance of the offer and the breach of contract claim properly was dismissed. As decedent’s estate seeks an accounting with respect to decedent’s interest in the property elsewhere in the complaint, the dismissal of the fourth cause of action in its entirety causes no prejudice.

We have considered plaintiffs’ remaining arguments and find them unavailing. Concur — Andrias, J.P., McGuire, Moskowitz, Freedman and Román, JJ.

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Bluebook (online)

78 A.D.3d 402, 910 N.Y.S.2d 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-spitz-v-pokoik-nyappdiv-2010.

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