Elow v. Svenningsen
873 N.Y.S.2d 319
N.Y. App. Div.
2009
Check Treatment

ADELA ELOW, Respondent, v CHRISTINE SVENNINGSEN, Appellant, et al., Defendant.

Supreme Court, Appellate Division, Second Department, New York

2009

873 N.Y.S.2d 319

Adela Elow, Respondent, v Christine Svenningsen, Appellant, et al., Defendant. [873 NYS2d 319]—In an action, inter alia, to permanently enjoin the defendants from obstructing an easement, the defendant Christine Svenningsen appeals from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered October 12, 2007, as denied those branches of her motion which were pursuant to CPLR 3211 (a) to dismiss the first, second, third, and fifth causes of action of the complaint insofar as asserted against her.

Ordered that the order is affirmed insofar as appealed from, with costs.

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the complaint must be accorded a liberal construction, the facts as alleged therein must be accepted as true, and the plaintiff must be accorded the benefit of every favorable inference. The court’s function on such a motion is to determine only whether the facts as alleged fit within any cognizable legal theory (see ; ; ; ).

The complaint, construed liberally, sufficiently pleaded a cause of action to enjoin the obstruction of the plaintiff’s easement (see ; ; ; ; ; ; , affd ). Moreover, for purposes of a motion pursuant to CPLR 3211 (a) (7), the plaintiff sufficiently pleaded a cause of action for a permanent injunction, as there allegedly was a “violation of a right presently occurring, or threatened and imminent . . . that the plaintiff has no adequate remedy at law . . . that serious and irreparable injury will result if the injunction is not granted; and . . . that the equities are balanced in the plaintiff’s favor” (67A NY Jur 2d, Injunctions § 153; see ).

A party seeking to dismiss pursuant to CPLR 3211 (a) (1) on the ground that its defense is based on documentary evidence must submit documentary evidence that resolves all factual issues as a matter of law and conclusively disposes of the plaintiff’s claim (see ; ; ; ). The documentary evidence submitted by the appellant in this case failed to resolve all factual issues and did not conclusively dispose of the plaintiff’s claim.

The appellant’s remaining contentions are without merit.

Skelos, J.P, Santucci, McCarthy and Dickerson, JJ., concur.