Fischbach & Moore, Inc. v. E.W. Howell Co.

Jun 3, 1997
Versions:240 A.D.2d 157
658 N.Y.S.2d 859
1997 N.Y. App. Div. LEXIS 5818

Order, Supreme Court, New York County (Charles Ramos, J.), entered July 3, 1996, which denied defendants’ motion pursuant to CPLR 3211 to dismiss the complaint, unanimously affirmed, with costs.

On a CPLR 3211 (a) (7) motion, the court should accept each of the factual allegations of the complaint as true, sustain the pleading when a cause of action may be discerned, even if in-artfully stated, and make no effort to evaluate the ultimate merits of the case (see, McGill v Parker, 179 AD2d 98, 105). A motion to dismiss a complaint can be granted pursuant to CPLR 3211 (a) (1) only if the movant presents documentary evidence that will "definitively dispose of the claim” (Demas v 325 W. End Ave. Corp., 127 AD2d 476, 477). We agree with the motion court that dispositive relief in favor of defendants would be inappropriate at this stage. The defenses pressed on the motion raise factual issues (see, e.g., National States Elec. Corp. v City of New York, 225 AD2d 745, 748; Castagna & Son v Board of Educ., 173 AD2d 405) that cannot be resolved on the pleadings or on the documentary evidence presented by defendants. We have considered defendants’ remaining argúments and find that they do not warrant dismissal of the complaint at this juncture. Concur—Sullivan, J. P., Milonas, Wallach, Tom and Mazzarelli, JJ.