Kass v. Zaslav

Appellate Division of the Supreme Court of New York

Kass v. Zaslav

55 A.D.3d 877, 865 N.Y.S.2d 577

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

DecidedOctober 28, 2008

StatusPublished

Cited by3 cases

This text of 55 A.D.3d 877 (Kass v. Zaslav) 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

Kass v. Zaslav, 55 A.D.3d 877, 865 N.Y.S.2d 577 (N.Y. Ct. App. 2008).

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Opinion

an action, inter alia, for a judgment declaring that the defendants wrongly deprived the plaintiff of the enjoyment of her property, the plaintiff appeals from an order of the Supreme Court, Rockland County (Garvey, J.), dated September 25, 2007, which denied her motion to strike the sixth affirmative defense and to dismiss the counterclaim asserted in the defendants’ separate answers, and granted that branch of the defendants’ joint cross motion which was, in effect, to dismiss the complaint pursuant to CPLR 3211 (a) (7).

Ordered that the order is affirmed, with costs.

In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), a court “should ‘accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ ” (Parsippany Constr. Co., Inc. v Clark Patterson Assoc., P.C., 41 AD3d 805, 806 [2007], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Applying this standard here, the complaint does not state, a cause of action against the defendants. Accordingly, the Supreme Court properly granted that branch of the cross motion which was to dismiss the complaint.

The parties’ remaining contentions are without merit. Spolzino, J.E, Lifson, Dickerson and Chambers, JJ., concur.

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an action, inter alia, for a judgment declaring that the defendants wrongly deprived the plaintiff of the enjoyment of her property, the plaintiff appeals from an order of the Supreme Court, Rockland County (Garvey, J.), dated September 25, 2007, which denied her motion to strike the sixth affirmative defense and to dismiss the counterclaim asserted in the defendants’ separate answers, and granted that branch of the defendants’ joint cross motion which was, in effect, to dismiss the complaint pursuant to CPLR 3211 (a) (7).

Ordered that the order is affirmed, with costs.

In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), a court “should ‘accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ ” (Parsippany Constr. Co., Inc. v Clark Patterson Assoc., P.C., 41 AD3d 805, 806 [2007], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Applying this standard here, the complaint does not state, a cause of action against the defendants. Accordingly, the Supreme Court properly granted that branch of the cross motion which was to dismiss the complaint.

The parties’ remaining contentions are without merit. Spolzino, J.E, Lifson, Dickerson and Chambers, JJ., concur.

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Bluebook (online)

55 A.D.3d 877, 865 N.Y.S.2d 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kass-v-zaslav-nyappdiv-2008.

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