Lowenstern v. Sherman Square Realty Corp.

2016 NY Slip Op 6866, 143 A.D.3d 562, 38 N.Y.S.3d 899

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 20, 2016
• Docket: 1955 159528/14
• Status: Published

Opinion

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about April 10, 2015, which denied defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7), unanimously affirmed, without costs.

Supreme Court properly denied the motion to dismiss pursuant to CPLR 3211 (a) (7), because the complaint adequately pleaded a cause of action sounding in negligence.

In addition, Supreme Court properly denied defendants’ motion to dismiss pursuant to CPLR 3211 (a) (1), because the climactical records do not conclusively refute the complaint’s allegations. The affidavit submitted by defendants in support of their motion to dismiss was not documentary evidence and does not conclusively establish a defense to the asserted claims as a matter of law (see Asmar v 20th & Seventh Assoc., LLC, 125 AD3d 563, 563-564 [1st Dept 2015]).

Defendants’ arguments based on summary judgment standards are of no moment; as noted by Supreme Court, they moved only to dismiss under CPLR 3211, and the court gave no indication that it was deeming the motion to dismiss a motion for summary judgment pursuant to CPLR 3211 (c) (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]).

Defendants’ request to strike the paragraph at the end of the order is unavailing; in denying the motion to dismiss, the court did not render a finding on the merits of the complaint or express an opinion as to plaintiffs ability to establish the truth of the averments (see Khan v Newsweek, Inc., 160 AD2d 425, 426 [1st Dept 1990]).

Concur — Mazzarelli, J.P., Acosta, Richter, Kapnick and Gesmer, JJ.