Long v. Allen AME Transportation Corp.

Appellate Division of the Supreme Court of New York

Long v. Allen AME Transportation Corp.

43 A.D.3d 1114, 841 N.Y.S.2d 798

Appellate Division of the Supreme Court of the State of New York·Decided September 25, 2007·Published·Cited by 3 cases

Opinion

In an action to recover damages for personal injuries, the defendant Academy Bus Tours of New York, Inc., appeals from an order of the Supreme Court, Queens County (Dorsa, J.), dated September 6, 2006, which denied its motion to dismiss the complaint, in effect, pursuant to CFLR 3211 (a) (1).

Ordered that the order is affirmed, with costs.

A motion to dismiss a complaint pursuant to CFLR 3211 (a) (1) “may be appropriately granted only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Kalmon Dolgin Affiliates of Long Is. v Robert Plan Corp., 248 AD2d 594 [1998]). As the [1115]*1115Supreme Court correctly concluded, the complaint contains sufficient allegations to state a cognizable cause of action against the appellant, which is not definitively refuted by documentary evidence. Crane, J.P., Goldstein, Skelos and Garni, JJ., concur.

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In an action to recover damages for personal injuries, the defendant Academy Bus Tours of New York, Inc., appeals from an order of the Supreme Court, Queens County (Dorsa, J.), dated September 6, 2006, which denied its motion to dismiss the complaint, in effect, pursuant to CFLR 3211 (a) (1).

Ordered that the order is affirmed, with costs.

A motion to dismiss a complaint pursuant to CFLR 3211 (a) (1) “may be appropriately granted only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Kalmon Dolgin Affiliates of Long Is. v Robert Plan Corp., 248 AD2d 594 [1998]). As the [1115]*1115Supreme Court correctly concluded, the complaint contains sufficient allegations to state a cognizable cause of action against the appellant, which is not definitively refuted by documentary evidence. Crane, J.P., Goldstein, Skelos and Garni, JJ., concur.

Long v. Allen AME Transportation Corp., 43 A.D.3d 1114, 841 N.Y.S.2d 798 (N.Y. Ct. App. 2007).

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Opinion

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