Opinion
May 7, 1991
Appeal from the Supreme Court, New York County (Carol Arber, J.).
Although on a motion addressed to the sufficiency of a complaint, the facts pleaded are presumed to be true and accorded every favorable inference (Morone v Morone, 50 N.Y.2d 481, 484), nevertheless, "allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration" (Roberts v Pollack, 92 A.D.2d 440, 444; accord, Gertler v Goodgold, 107 A.D.2d 481, 485, affd 66 N.Y.2d 946; Riffat v Continental Ins. Co., 104 A.D.2d 301, 302).
Upon examination of the record, we find that the IAS court did not err in dismissing defendants' first counterclaim for contractual liability in connection with the rendering of design services for their home in Greenwich, Connecticut, against Hampton individually, where the defendants' contractual claim is "flatly contradicted by documentary evidence" consisting of estimates, invoices, checks and correspondence, establishing the existence of an agreement between only the defendants and the corporate plaintiff (Blackgold Realty Corp. v Milne, 119 A.D.2d 512, affd 69 N.Y.2d 719).
We find, however, that the IAS court erred in refusing to dismiss the defendants' second counterclaim premised upon negligence as against Hampton individually where, by reason of the contract between the defendants and the corporate plaintiff, defendants are unable to establish the threshold element of the existence of a duty flowing from Hampton individually to the defendants which is essential to a cause of action in negligence. (Pulka v Edelman, 40 N.Y.2d 781, 782; Febesh v Elcejay Inn Corp., 157 A.D.2d 102, 104, lv denied 77 N.Y.2d 801.)
[The unpublished decision and order of this Court entered on February 26, 1991, as corrected on March 5, 1991, is recalled and vacated.]
Concur — Milonas, J.P., Ellerin, Wallach, Kassal and Smith, JJ.