Kass v. Zaslav

Oct 28, 2008
Versions:

In an action, inter alia, for a judgment declaring that the defendants wrongly deprived the plaintiff of the enjoyment of her property, the plaintiff appeals from an order of the Supreme Court, Rockland County (Garvey, J.), dated September 25, 2007, which denied her motion to strike the sixth affirmative defense and to dismiss the counterclaim asserted in the defendants’ separate answers, and granted that branch of the defendants’ joint cross motion which was, in effect, to dismiss the complaint pursuant to CPLR 3211 (a) (7).

Ordered that the order is affirmed, with costs.

In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7), a court “should ‘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‘” (Parsippany Constr. Co., Inc. v Clark Patterson Assoc., P.C., 41 AD3d 805, 806 [2007], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Applying this standard here, the complaint does not state a cause of action against the defendants. Accordingly, the Supreme Court properly granted that branch of the cross motion which was to dismiss the complaint.

The parties’ remaining contentions are without merit.

Spolzino, J.P., Lifson, Dickerson and Chambers, JJ., concur.