| Breytman v Olinville Realty, LLC |
| 2008 NY Slip Op 06787 [54 AD3d 703] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Alexander Breytman, Appellant, v Olinville Realty, LLC,et al., Respondents. |
—[*1] Jaffe & Asher LLP, New York, N.Y. (Ira N. Glauber and Mark P. Monack of counsel), forrespondents Olinville Realty, LLC, Olinville Realty Co., LLC, Weiner Realty Company, WeinerRealtors, Weiner-Mega, LLC, Weiner Realty Co., Pinnacle Holding Company, Pinnacle HoldingCompany, LLC, Pinnacle Bronx, LLC, Pinnacle Bronx North, LLC, Pinnacle Bronx South, LLC,Pinnacle Bronx West, LLC, Pinnacle Amsterdam, LLC, Pinnacle Flatbush, LLC, PinnacleHamilton, LLC, Pinnacle Holding Co. 1, LLC, Pinnacle Holding Co. 2, LLC, Pinnacle HoldingCo. 3, LLC, Pinnacle Holding Co. 4, LLC, Pinnacle Holding Co. 5, LLC, Pinnacle Holding Co.6, LLC, Pinnacle Managing Co., LLC, Pinnacle Midwood, LLC, Pinnacle Parkway, LLC,Pinnacle Uptown, LLC, Praediumgroup, LLC, Kingbridge Realty Associates, LLC, UnderhillRealty, LLC, Federal Realty, LLC, Joel Weiner, Harry Hirsh, Effie Galato, Donna Fabrizio,Sadat Rugova, and John Doe "Mr. Foster."
In an action, inter alia, to recover damages for personal injuries and breach of impliedwarranty of habitability, the plaintiff appeals (1), as limited by his brief, from stated portions ofan order of the Supreme Court, Kings County (Ruditzky, J.), dated October 20, 2006, which,among other things, granted the defendants' motion to dismiss the complaint pursuant to, interalia, CPLR 3211 (a) (7), (2) from an order of same court (Held, J.), dated March 1, 2007, which,among other things, granted, in effect, the renewed motion of the defendants Olinville Realty,LLC, Olinville Realty Co., LLC, Olinville Realty, Weiner Realtors, Weiner Realty, LLC, WeinerRealty, Joel Weiner, Harry Hirsh, Donna Fabrizio, Effie Galato, "Forester," Sadat Rugova, andBronx Pinnacle, LLC, to dismiss the amended complaint insofar as asserted against thempursuant to CPLR [*2]3211 (a) (7), and (3) from an order of thesame court (Held, J.), also dated March 1, 2007, which granted the motion of the defendantsRappaport, Hertz, Cherson and Rosenthal, P.C., and John Robalino to dismiss the amendedcomplaint insofar as asserted against them pursuant to CPLR 3211 (a) (7) and (8).
Ordered that the order dated October 20, 2006, is affirmed insofar as appealed from, withoutcosts or disbursements; and it is further,
Ordered that the first order dated March 1, 2007, is modified, on the law, by deleting theprovision thereof granting that branch of the, in effect, renewed motion of the defendantsOlinville Realty, LLC, Olinville Realty Co., LLC, Olinville Realty, Weiner Realtors, WeinerRealty, LLC, Weiner Realty, Joel Weiner, Harry Hirsh, Donna Fabrizio, Effie Galato, "Forester,"Sadat Rugova, and Bronx Pinnacle, LLC, which was to dismiss the cause of action in theamended complaint to recover damages for negligence causing personal injuries insofar asasserted against the defendant Olinville Realty, LLC, and substituting therefor a provisiondenying that branch of the, in effect, renewed motion; as so modified, the order is affirmed,without costs or disbursements; and it is further,
Ordered that the second order dated March 1, 2007, granting the motion of the defendantsRappaport, Hertz, Cherson and Rosenthal, P.C., and John Robalino to dismiss the amendedcomplaint insofar as asserted against them, is affirmed, without costs or disbursements.
On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, the court must afford the pleading a liberal construction, accept all facts asalleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory (see Leon vMartinez, 84 NY2d 83, 87 [1994]; Asgahar v Tringali Realty, Inc., 18 AD3d 408 [2005]). However,bare legal conclusions are not presumed to be true, nor are they accorded every favorableinference (see Morris v Morris, 306 AD2d 449, 451 [2003]; Doria v Masucci,230 AD2d 764, 765 [1996]). The Supreme Court was correct in dismissing the plaintiff's cause ofaction alleging breach of the implied warranty of habitability, asserted in the amended complaint,since the facts as alleged did not fit within any cognizable legal theory.
However, contrary to the Supreme Court's determination, the amended complaint sufficientlyalleged a cause of action against the defendant Olinville Realty, LLC, the plaintiff's landlord, torecover damages for personal injuries caused by that defendant's negligence. The plaintiff allegedthat on January 26, 2003, he suffered physical injuries when a portion of a wall in his apartmentfell on him. When accepting all the facts as alleged in the amended complaint to be true andallowing the plaintiff the benefit of every possible inference, the facts as alleged fit within acognizable legal theory.
The plaintiff's remaining contentions are without merit. Fisher, J.P., Covello, Angiolillo andBelen, JJ., concur.