Roland Pietropaoli Trucking, Inc. v. Nationwide Mutual Insurance

100 A.D.2d 680, 473 N.Y.S.2d 879, 1984 N.Y. App. Div. LEXIS 17663

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1984
• Status: Published

Opinions

Appeal from an order of the Supreme Court at Special Term (Kahn, J.), entered February 7,1982 in Albany County, which, inter alia, denied defendant’s motion to dismiss plaintiff’s second, third and fourth causes of action. H Defendant’s computer failed to properly credit insurance premiums made by plaintiff and caused notices of cancellation to be mailed to seven of plaintiff’s customers who required that insurance coverage be maintained. Within one week and prior to the effective date of cancellation, the error was discovered and letters sent to the customers explaining and correcting it. Special Term partially granted defendant’s CPLR 3211 (subd [a], par 7) motion dismissing the first cause of action for libel, but denied dismissal of the remaining causes which the court held were grounded in intentional tort, negligence and breach of contract. Defendant has appealed, f Initially, we note that judicial review of decisions upon CPLR 3211 (subd [a], par 7) motions is limited. Under that section, the well-known principle is that every fact alleged must be assumed to be true and the complaint, or cause of action, liberally construed in plaintiff’s favor (Barr v Wackman, 36 NY2d 371, 375; Howard Stores Corp. v Pope, 1 NY2d 110,114; Bervy v Hotaling, 88 AD2d 735, 736). The concern is not whether a plaintiff can prove its cause of action, but only whether one has been stated (Kober v Kober, 16 NY2d 191, 193). If it is possible upon the facts alleged for plaintiff to recover, the complaint (or causes of action) must be sustained (MacDonald v Howard, 91 AD2d 1119, 1120; Mateo Elec. Co. v Plaza Del Sol Constr. Corp., 82 AD2d 979, app dsmd 55 NY2d 748). | These principles in mind, we hold that there should be an affirmance. Nowhere in the moving papers has defendant addressed the second, third and fourth causes of action, electing instead to specifically attack only the insufficiency of the cause of action for libel. A movant must specify in its motion papers and affidavits the precise alleged defects in the complaint (Syrang Aero Club v Foremost Ins. Co., 54 AD2d 1095; Carney v American Fid. Fire Ins. Co., 29 AD2d 795). With respect to the motion pursuant to CPLR 3211 (subd [a], par 7), “[t]he criteria for determining such a motion is [sic] akin to that used to decide a motion for summary judgment * * * and the proof must be convincing” (Siegel, NY Prac, § 265, p 325). The record shows that both the notice of motion and supporting affidavits are solely directed toward the allegation of libel. It is only in its brief upon this appeal that defendant urges that the remaining three causes of action should also have been dismissed. This court has consistently held that matters not raised below will not be considered for the first time on appeal (Todd v Krolick, 96 AD2d 695, 696; Board of Trustees v Pyramid Cos., 51 AD2d 414, 416). UNor do we find that defendant has demonstrated entitlement to summary judgment (sought in the alternative) pursuant to CPLR 3212. “To obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form” (.Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065,1067). We find the required showing sufficient to dismiss the second, third and fourth causes of action has not been made here. 1i Order affirmed, with costs. Mahoney, P. Ji, Kane, Casey and Weiss, JJ., concur.