| Fishberger v Voss |
| 2008 NY Slip Op 04314 [51 AD3d 627] |
| May 6, 2008 |
| Appellate Division, Second Department |
| Steven B. Fishberger et al., Appellants, v Christian H. Vosset al., Respondents. |
—[*1] Penino & Moynihan, LLP, White Plains, N.Y. (Lorenzo L. Angelino of counsel), forrespondent Houlihan Lawrence, Inc.
In an action, inter alia, to recover damages for fraud and breach of fiduciary duty, theplaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court,Westchester County (Nastasi, J.), entered April 9, 2007, as granted that branch of the motion ofthe defendants Christian H. Voss and Sally Voss which was, in effect, to dismiss the fifth causeof action in the amended complaint pursuant to CPLR 3211 (a) (7), and (2) from an order of thesame court entered December 12, 2007 which denied their motion for leave to reargue.
Ordered that the appeal from the order entered December 12, 2007 is dismissed, as no appeallies from an order denying a motion for leave to reargue; and it is further,
Ordered that the order entered April 9, 2007 is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the defendant Houlihan Lawrence, Inc.
On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must afford thecomplaint a liberal construction, accept all facts as alleged in the complaint to be true, accord theplaintiff the benefit of every favorable inference, and determine only whether the facts as allegedfit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).However, where [*2]evidentiary material is submitted andconsidered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion isnot converted into one for summary judgment, the question becomes whether the plaintiff "has acause of action, not whether [the plaintiff] has stated one, and, unless it has been shown that amaterial fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be saidthat no significant dispute exists regarding it . . . dismissal should not eventuate"(Guggenheimer v Ginzburg, 43 NY2d 268, 274-275 [1977]).
In support of the fifth cause of action in the amended complaint, the plaintiffs alleged, interalia, that a particular condition affecting certain property they contracted to purchase "was notreasonably discoverable by" them. However, certain evidentiary material submitted on themotion to dismiss demonstrated, without significant dispute, that the condition could, in fact,have been discovered by the plaintiffs through the exercise of reasonable diligence. Under thesecircumstances, the Supreme Court properly granted that branch of the motion which was todismiss the fifth cause of action (seeIllions v Allstate Ins. Co., 2 AD3d 686, 686-687 [2003]; Columbo v ChaseManhattan Automotive Fin. Corp., 297 AD2d 327, 328 [2002]).
The plaintiffs' remaining contentions are without merit. Skelos, J.P., Covello, Eng andLeventhal, JJ., concur.