| Dreifus v Heimeshe Bakery Corp. |
| 2008 NY Slip Op 02101 [49 AD3d 591] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Hannelore Dreifus, Respondent, v Heimeshe Bakery Corp.et al., Appellants, et al., Defendants. |
—[*1] Goldfarb & Goldfarb, Brooklyn, N.Y. (Aaron M. Feldman of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of a lease, the defendants HeimesheBakery Corp., Heimeshe Cof, Inc., doing business as Ostrovitsky Bakery, Yair Ostrovitsky, andJacob Ostrovitsky appeal, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (Ambrosio, J.), dated July 9, 2007, as denied that branch of their motionwhich was pursuant to CPLR 3211 (a) to dismiss the sixth cause of action insofar as assertedagainst them.
Ordered that the appeal by the defendant Heimeshe Bakery Corp. is dismissed as abandoned(see 22 NYCRR 670.8 [e]); and it is further,
Ordered that the order is reversed insofar as appealed from by the defendants Heimeshe Cof,Inc., doing business as Ostrovitsky Bakery, Yair Ostrovitsky, and Jacob Ostrovitsky, on the law,and that branch of the motion which was to dismiss the sixth cause of action insofar as assertedagainst those defendants is granted; and it is further,
Ordered that one bill of costs is awarded to the defendants Heimeshe Cof, Inc., doingbusiness as Ostrovitsky Bakery, Yair Ostrovitsky, and Jacob Ostrovitsky.
"On a motion to dismiss pursuant to CPLR 3211 [(a) (7)], the pleading is to be afforded aliberal construction (see CPLR 3026). We accept the facts as alleged in the complaint astrue, accord [the] plaintiffs the benefit of every possible favorable inference, and determine onlywhether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84NY2d 83, 87-88 [1994]). Here, even after according the plaintiff the benefit of every possibleinference, we conclude that the sixth cause [*2]of action fails tostate any cognizable legal ground for the recovery of damages against the defendants HeimesheCof, Inc., doing business as Ostrovitsky Bakery, Yair Ostrovitsky, and Jacob Ostrovitsky (see Widman v Rosenthal, 40 AD3d749 [2007]). Accordingly, the Supreme Court should have granted that branch of the motionwhich was to dismiss the sixth cause of action insofar as asserted against those defendants.
The parties' remaining contentions are without merit. Lifson, J.P., Ritter, Florio and Carni,JJ., concur.