Thoubboron v. Convery

306 A.D.2d 521, 761 N.Y.S.2d 847

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 2003
• Status: Published

Opinion

—In an action to recover damages for defamation, the defendant Peter Convery appeals from an order of the Supreme Court, Putnam County (Hickman, J.), dated February 27, 2002, which denied his motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action.

Ordered that the order is affirmed, with costs.

The plaintiff, the former sheriff of Putnam County, commenced this action to recover damages for an allegedly defamatory statement made by the defendant Peter Convery (hereinafter the defendant) in a press release published in a local newspaper. In the press release, the defendant asserted, inter alia, that the plaintiff used an aircraft owned by the sheriffs department to take personal trips at the taxpayers’ expense.

“[0]n a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must determine whether, accepting as true the factual averments of the complaint and according the plaintiff the benefits of all favorable inferences which may be drawn therefrom, the plaintiff can succeed upon any reasonable view of the facts stated” (Board of Educ. of City School Dist. of City of New Rochelle v County of Westchester, 282 AD2d 561, 562 [2001]). Where evidence is submitted by the movant in support of the CPLR 3211 (a) (7) motion, the court must determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one (see Columbo v Chase Manhattan Automotive Fin. Corp., 297 AD2d 327 [2002]; Steiner v Lazzaro & Gregory, 271 AD2d 596 [2000]).

Applying these principles to the case at bar, the Supreme Court properly denied the defendant’s motion (see Wasserman v Haller, 216 AD2d 289 [1995]; Scott v Cooper, 215 AD2d 368 [1995]). Florio, J.P., S. Miller, H. Miller and Mastro, JJ., concur.