| Peter F. Gaito Architecture, LLC v Simone Dev. Corp. |
| 2007 NY Slip Op 09567 [46 AD3d 530] |
| December 4, 2007 |
| Appellate Division, Second Department |
| Peter F. Gaito Architecture, LLC, Appellant, v SimoneDevelopment Corp., Respondent. |
—[*1] Collier, Halpern, Newberg, Nolletti & Bock, LLP, White Plains, N.Y. (Philip M. Halpern ofcounsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals fromso much of an order of the Supreme Court, Westchester County (Rudolph, J.), dated November3, 2006, as granted those branches of the defendant's motion which were to dismiss the first,second, and third causes of action pursuant to CPLR 3211 (a) (7).
Ordered that the order is affirmed insofar as appealed from, with costs.
In assessing a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (7), whereevidentiary material is adduced in support of the motion, the court must determine whether theproponent of the pleading has a cause of action, not whether the proponent has stated one (seeGuggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Steiner v Lazzaro & Gregory,271 AD2d 596 [2000]; Meyer v Guinta, 262 AD2d 463, 464 [1999]). "[B]are legalconclusions and factual claims which are flatly contradicted by the evidence are not presumed tobe true on such a motion" (Palazzolo v Herrick, Feinstein, LLP, 298 AD2d 372 [2002]).If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant toCPLR 3211 (a) (7) is warranted even if the allegations, standing alone, could withstand a motionto dismiss for failure to state a cause of action (see McGuire v Sterling Doubleday Enters., L.P., 19 AD3d 660, 661[2005]).
In this case, the defendant adduced an unsigned draft agreement which had been the [*2]subject of negotiations between the parties. This unsigned draftagreement disproved the plaintiff's allegation that the defendant had verbally concurred with theterms of a preliminary "memorandum of understanding" which the plaintiff had sent to thedefendant by e-mail. Under the circumstances, the parties evinced their intent not to be bounduntil the execution of a formal contract, and no enforceable obligation arose (see PelhamCommons Joint Venture v Village of Pelham, 308 AD2d 520, 521 [2003]). Accordingly, theSupreme Court properly granted those branches of the defendant's motion which were to dismissthe first, second, and third causes of action pursuant to CPLR 3211 (a) (7). Goldstein, J.P.,Skelos, Dillon and Covello, JJ., concur.