Pertoso v. Hanna

103 A.D.3d 698, 959 N.Y.S.2d 448

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 2013
• Status: Published

Opinion

In an action, inter alia, to recover damages for private nuisance, the defendants appeal from an order of the Supreme Court, Queens County (Lane, J.), entered November 16, 2011, which denied their motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint.

Ordered that the order is affirmed, with costs.

In considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must “ ‘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’ ” (Sokol v Leader, 74 AD3d 1180, 1181 [2010], quoting Nonnon v City of New York, 9 NY3d 825, 827 [2007]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Here, contrary to the defendants’ contentions, the plaintiff adequately pleaded a cause of action to recover damages for private nuisance (see Copart Indus, v Consolidated Edison Co. of N.Y., 41 NY2d 564, 569-571 [1977]; Disunno v WRH Props., LLC, 97 AD3d 780, 781 [2012]; Ford v Fink, 84 AD3d 725, 728 [2011]). Accordingly, the Supreme Court properly denied the defendants’ motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint. Rivera, J.P., Lott, Roman and Sgroi, JJ., concur.