Opinion
2011-12-13
Demetrios BEKAS, appellant, v. Efstathios VALIOTIS, et al., respondents.
Mavromihalis Paradalis & Nohavicka, LLP, Astoria, N.Y. (Joseph D. Nohavicka of counsel; Socrates Xanthopoulos on the brief), for appellant. Renee Digrugilliers, Long Island City, N.Y., for respondents.
Mavromihalis Paradalis & Nohavicka, LLP, Astoria, N.Y. (Joseph D. Nohavicka of counsel; Socrates Xanthopoulos on the brief), for appellant. Renee Digrugilliers, Long Island City, N.Y., for respondents.
In an action, inter alia, to recover damages for fraudulent inducement, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Grays, J.), dated September 22, 2010, as granted those branches of the defendants' motion which were to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendants' motion which were to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7) are denied.
The Supreme Court erred in granting that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1). The documentary evidence submitted by the defendants did not utterly refute the plaintiff's allegations, conclusively establishing a defense as a matter of law ( see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; see also Fontanetta v. John Doe 1, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569; Morgenthow & Latham v. Bank of New York Company, Inc., 305 A.D.2d 74, 760 N.Y.S.2d 438; Berger v. Temple Beth–El of Great Neck, 303 A.D.2d 346, 756 N.Y.S.2d 94).
Similarly, the Supreme Court erred in granting that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7), as the plaintiff adequately pleaded a cause of action ( see Steve Elliot, LLC v. Teplitsky, 59 A.D.3d 523, 873 N.Y.S.2d 672).
The parties' remaining contentions are without merit.