Opinion
2012-10-24
Lucille CUCCO, also known as Lucille Piazza, appellant, v. CHABAU CAFÉ CORP., et al., defendants, Catherine Chavenet, respondent.
Windels Marx Lane & Mittendorf, LLP, New York, N.Y. (Mark A. Slama and Christina J. Sorbera of counsel), for appellant. Soren & Soren, Staten Island, N.Y. (Steven J. Soren of counsel), for respondent.
Windels Marx Lane & Mittendorf, LLP, New York, N.Y. (Mark A. Slama and Christina J. Sorbera of counsel), for appellant. Soren & Soren, Staten Island, N.Y. (Steven J. Soren of counsel), for respondent.
In an action, inter alia, to recover damages for breach of a commercial lease, the plaintiff appeals from an order of the Supreme Court, Richmond County (McMahon, J.), dated April 26, 2011, which granted that branch of the motion of the defendant Catherine Chavenet which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against her and the defendant Laurent Chavenet, her indemnitee.
ORDERED that the order is reversed, on the law, with costs, and the subject branch of the motion of the defendant Catherine Chavenet is denied.
“On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” ( Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 703–704, 864 N.Y.S.2d 70;see EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26;Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511;White Plains Cleaning Servs., Inc. v. 901 Props., LLC, 94 A.D.3d 1108, 1108–1109, 942 N.Y.S.2d 636;East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 66 A.D.3d 122, 125, 884 N.Y.S.2d 94,affd.16 N.Y.3d 775, 919 N.Y.S.2d 496, 944 N.E.2d 1135). When courts consider evidentiary material on motions to dismiss, the criterion becomes whether proponents of pleadings have a cause of action, not whether they have stated one. Upon a court's consideration of such evidentiary material, however, motions to dismiss pursuant to CPLR 3211(a)(7) should be granted only when (1) it has been shown that a material fact alleged in the complaint is not a fact at all, and (2) there is no significant dispute regarding it ( see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17;Sokol v. Leader, 74 A.D.3d 1180, 1181–1182, 904 N.Y.S.2d 153).
Here, the complaint adequately states a cause of action to recover damages for breach of guaranty. Moreover, the evidentiary material that the defendant Catherine Chavenet submitted in support of that branch of her motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against her and the defendant Laurent Chavenet, her indemnitee, failed to show beyond significant dispute that any material fact alleged in the complaint was not a fact at all ( see Bokhour v. GTI Retail Holdings, Inc., 94 A.D.3d 682, 683, 941 N.Y.S.2d 675). Accordingly, the subject branch of the motion should have been denied.