Kalmon Dolgin Affiliates of Long Island, Inc. v. Robert Plan Corp.

248 A.D.2d 594, 669 N.Y.S.2d 920, 1998 N.Y. App. Div. LEXIS 2901

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 1998
• Status: Published

Opinion

—In an action to recover a real estate brokerage commission, the defendants Robert Plan Corporation and Eagle, Ltd., appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Kutner, J.), dated December 31, 1996, as denied their motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with costs.

Since the documentary evidence relied upon by the appellants did not definitively dispose of the plaintiff’s claim, the Supreme Court properly denied their motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against them (see, R.W.P. Group v Holzberg, 202 AD2d 410, 411; Juliano v McEntee, 150 AD2d 524; Greenwood Packing Corp. v Associated Tel. Design, 140 AD2d 303).

O’Brien, J. P., Ritter, Thompson, Friedmann and Goldstein, JJ., concur.