Summary
affirming dismissal of claims where documentary evidence demonstrated that plaintiff was not the sole owner, and the claim was premised on plaintiff being the sole owner
Summary of this case from Domingo v. Bidkind, LLCOpinion
5666
December 18, 2001.
Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered July 17, 2000, which, inter alia, granted defendant Shohaku Higashi's motion to the extent of dismissing the consolidated complaints pursuant to CPLR 3211(a)(1), unanimously modified, on the law and the facts, to deny the motion with respect to plaintiff's fifth cause of action in each of the consolidated complaints and to reinstate such cause in each of the consolidated complaints, with leave to plaintiff Yoshiharu Igarashi to amend the fifth cause of action in each complaint to seek a partition of the subject properties, and otherwise affirmed, without costs.
Saul A. Mishaan, for plaintiff-appellant.
Alan D. Zuckerbrod, for defendant-respondent.
Before: Lerner, J.P., Saxe, Buckley, Friedman, Marlow, JJ.
In view of the documentary evidence, to wit, deeds signed by plaintiff Igarashi at the closings of the four properties in question indicating that both Igarashi and defendant Higashi are owners of the properties, dismissal of the first four causes of action, which essentially claimed that plaintiff was the sole owner of the property, was appropriate. While pleadings should be liberally construed on a motion to dismiss, claims "flatly contradicted by documentary evidence" must be rejected (see,Kliebert v. McKoan, 228 A.D.2d 232, lv denied 89 N.Y.2d 802).
Nevertheless, we reinstate plaintiff's fifth cause of action, which,inter alia, sought sale of the subject properties and an accounting. The IAS court directed an accounting, to which defendant Higashi had consented. In order to retain jurisdiction over any challenges to the completeness or timeliness of the accounting, reinstatement of the cause of action is warranted. Further, we grant leave to Igarashi to amend this cause of action to seek partition, in view of the apparently fractious relationship between the two owners of the property.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.