Opinion
2012-04-3
Elyas BOKHOUR, respondent, v. GTI RETAIL HOLDINGS, INC., defendant,Theodore Ketsoglou, et al., appellants.
Franklin, Gringer & Cohen, P.C., Garden City, N.Y. (Steven E. Cohen of counsel), for appellants. Mehrdad Kohanim, Garden City, N.Y., for respondent.
Franklin, Gringer & Cohen, P.C., Garden City, N.Y. (Steven E. Cohen of counsel), for appellants. Mehrdad Kohanim, Garden City, N.Y., for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and JOHN M. LEVENTHAL, JJ.
In an action, inter alia, to recover damages for breach of a commercial lease, the defendants Theodore Ketsoglou and Andrew Seabury appeal from an order of the Supreme Court, Nassau County (DeStefano, J.), entered November 7, 2011, which denied their motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.
ORDERED that the order is affirmed, with costs.
“When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action” ( Sokol v. Leader, 74 A.D.3d 1180, 1180–1181, 904 N.Y.S.2d 153; see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17). “In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” ( Sokol v. Leader, 74 A.D.3d at 1181, 904 N.Y.S.2d 153 [internal quotation marks omitted]; see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). “ ‘Whether a plaintiff can ultimately establish its allegations is not part of the calculus' ” ( Sokol v. Leader, 74 A.D.3d at 1181, 904 N.Y.S.2d 153, quoting EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26). However, “[a] court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)” ( Sokol v. Leader, 74 A.D.3d at 1181, 904 N.Y.S.2d 153; see CPLR 3211[c] ). “If the court considers evidentiary material, the criterion then becomes ‘whether the proponent of the pleading has a cause of action, not whether he has stated one’ ” ( Sokol v. Leader, 74 A.D.3d at 1181–1182, 904 N.Y.S.2d 153, quoting Guggenheimer v. Ginzburg, 43 N.Y.2d at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17). “Yet, affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action” ( Sokol v. Leader, 74 A.D.3d at 1182, 904 N.Y.S.2d 153 [internal quotation marks omitted]; see Lawrence v. Graubard Miller, 11 N.Y.3d 588, 595, 873 N.Y.S.2d 517, 901 N.E.2d 1268; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636, 389 N.Y.S.2d 314, 357 N.E.2d 970). “Indeed, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied ‘unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it’ ” ( Sokol v. Leader, 74 A.D.3d at 1182, 904 N.Y.S.2d 153, quoting Guggenheimer v. Ginzburg, 43 N.Y.2d at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17).
Here, the appellants, who submitted evidentiary material in support of their motion, failed to demonstrate that any fact alleged in the complaint was undisputedly not a fact at all ( see Guggenheimer v. Ginzburg, 43 N.Y.2d at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17; Sokol v. Leader, 74 A.D.3d at 1182, 904 N.Y.S.2d 153). Accordingly, the Supreme Court properly denied the appellants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.