Opinion
Submitted November 17, 1999
December 27, 1999
In an action to recover damages for personal injuries, the defendant PMS Enterprises, Inc., appeals from an order of the Supreme Court, Nassau County (Lally, J.), dated February 22, 1999, which denied its motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.
Scott R. Cohen, Carle Place, N.Y., for appellant.
Cheven, Keely Hatzis, New York, N.Y. (Thomas Torto and Jason Levine of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
In considering a motion to dismiss for failure to state a cause of action (see, CPLR 3211[a][7]), the pleadings must be liberally construed (see, CPLR 3026; Mayer v. Sanders, 264 A.D.2d 827 [2d Dept., Sept. 27, 1999]). Accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the court must determine only whether the facts as alleged fit within any cognizable legal theory (see, Leon v. Martinez, 84 N.Y.2d 83, 87-88 ; Morone v. Morone, 50 N.Y.2d 481, 484 ;Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634 ). The affidavit and other evidence submitted by the appellant and the plaintiff do not conclusively establish that the plaintiff has no cause of action against the appellant (see, Rovello v. Orofino Realty Co., supra, at 636; Albert v. Solimon, 252 A.D.2d 139 , affd N Y 2d [Oct. 14, 1999]; M L Provisions v. Dominick's Italian Delights, 141 A.D.2d 616 ; Fields v. Leeponis, 95 A.D.2d 822 ). Therefore, the appellant's motion to dismiss the complaint insofar as asserted against it for failure to state a cause of action was properly denied.
BRACKEN, J.P., SANTUCCI, ALTMAN, FRIEDMANN, and H. MILLER, JJ., concur.