K.S.L.A. Construction Corp. v. Paccione

102 A.D.2d 813, 476 N.Y.S.2d 382, 1984 N.Y. App. Div. LEXIS 18980

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 4, 1984
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, plaintiff appeals from so much of an order of the Supreme Court, Richmond County (Goldberg, J.), dated April 4, 1983, as granted that branch of respondent’s motion which sought partial summary judgment dismissing the first cause of action of the complaint as against him. H Order reversed insofar as appealed from, on the law, without costs or disbursements, and respondent’s motion denied in its entirety. H Whether viewed as a motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 7) or a motion for partial summary judgment pursuant to CPLR 3212, Special Term erred in dismissing the first cause of action of the complaint as against respondent Michael Paccione. Construing the complaint liberally in favor of the plaintiff and assuming the truth of the factual allegations contained therein (see MacKay v Pierce, 86 AD2d 655), it sufficiently states a cause of action for breach of contract by the individual defendant to withstand a CPLR 3211 (subd [a], par 7) motion to dismiss (cf. Walkovszky v Carlton, 18 NY2d 414). Moreover, if viewed from the perspective of a summary judgment motion, the application should still have been denied pursuant to CPLR 3212 (subd [f|) on the ground that the information necessary to oppose it is exclusively within the knowledge of the moving party. Titone, J. P., Mangano, Gibbons and Brown, JJ., concur.