Opinion
2013-00036
03-18-2015
M.H. MANDELBAUM ORTHOTIC & PROSTHETIC SERVICES, INC., et al., respondents, v. Carl WERNER, defendant, Marc Werner, appellant.
Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Bryan F. Lewis and Robert A. Lifson of counsel), for appellant. Garfunkel Wild, P.C., Great Neck, N.Y. (Roy W. Breitenbach and Michael J. Keane, Jr., of counsel), for respondents.
Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Bryan F. Lewis and Robert A. Lifson of counsel), for appellant.
Garfunkel Wild, P.C., Great Neck, N.Y. (Roy W. Breitenbach and Michael J. Keane, Jr., of counsel), for respondents.
Opinion In an action, inter alia, for a judgment declaring the plaintiffs' rights under a shareholders' agreement, the defendant Marc Werner appeals from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated May 30, 2012, as denied his motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against him.
ORDERED that order is affirmed insofar as appealed from, with costs.
“To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law” (Gould v. Decolator, 121 A.D.3d 845, 847, 994 N.Y.S.2d 368 ; 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 ; Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). Here, the documentary evidence the appellant submitted in support of his motion did not utterly refute the plaintiff's factual allegations or conclusively establish a defense to the complaint insofar as asserted against him. Accordingly, the Supreme Court properly denied that branch of his motion which was to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211(a)(1) (see North Shore Towers Apts. Inc. v. Three Towers Assoc., 104 A.D.3d 825, 827, 961 N.Y.S.2d 504 ; AGCS Mar. Ins. Co. v. Scottsdale Ins. Co., 102 A.D.3d 899, 900, 958 N.Y.S.2d 753 ; Halloran v. Halloran, 161 A.D.2d 562, 565, 555 N.Y.S.2d 139 ).
In determining a motion to dismiss pursuant to CPLR 3211(a)(7), 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” (Leon v. Martinez, 84 N.Y.2d at 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). The sole consideration in determining a pre-answer motion to dismiss a declaratory judgment action is “whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration” (Minovici v. Belkin BV, 109 A.D.3d 520, 524, 971 N.Y.S.2d 103 [internal quotation marks omitted]; see Rockland Light & Power Co. v. City of New York, 289 N.Y. 45, 51, 43 N.E.2d 803 ; North Shore Towers Apts. Inc. v. Three Towers Assoc., 104 A.D.3d at 827, 961 N.Y.S.2d 504 ; DiGiorgio v. 1109–1113 Manhattan Ave. Partners, LLC, 102 A.D.3d 725, 728, 958 N.Y.S.2d 417 ; Matter of Tilcon N.Y., Inc. v. Town of Poughkeepsie, 87 A.D.3d 1148, 1150, 930 N.Y.S.2d 34 ). Here, the allegations of the complaint were sufficient to invoke the court's power to render a declaration resolving a justiciable controversy between the appellant and the plaintiffs (see CPLR 3001, 3017[b] ). As such, the Supreme Court properly denied that branch of the appellant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him (see North Shore Towers Apts. Inc. v. Three Towers Assoc., 104 A.D.3d at 827, 961 N.Y.S.2d 504 ; DiGiorgio v. 1109–1113 Manhattan Ave. Partners, LLC, 102 A.D.3d at 729–730, 958 N.Y.S.2d 417 ; Palm v. Tuckahoe Union Free School Dist., 95 A.D.3d 1087, 1090, 944 N.Y.S.2d 291 ).
The appellant's arguments concerning the court's finding following a framed-issue hearing are not properly before us on this appeal (see Matter of Country–Wide Ins. Co. v. Bloomfield–Palmer, 117 A.D.3d 946, 985 N.Y.S.2d 889 ; 420 E. Assoc. v. Estate of Lennon, 225 A.D.2d 326, 638 N.Y.S.2d 472 ).
RIVERA, J.P., DICKERSON, ROMAN and DUFFY, JJ., concur.