| 30th Place Holdings, LLC v 474431 Assoc. |
| 2008 NY Slip Op 06825 [54 AD3d 753] |
| September 9, 2008 |
| Appellate Division, Second Department |
| 30th Place Holdings, LLC, Appellant, v 474431Associates, Respondent. |
—[*1] DLA Piper US, LLP, New York, N.Y. (Todd B. Marcus and Megan Shea Harwick ofcounsel), and Edward I. Sussman, New York, N.Y., for respondent (one brief filed).
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, aslimited by its brief, from so much of an order of the Supreme Court, Queens County (Kelly, J.),dated April 19, 2007, as granted those branches of the defendant's motion pursuant to CPLR3211 (a) (1) and (7) which were to dismiss the first cause of action to recover for overpayment ofrent and the second cause of action to recover security deposit interest.
Ordered that the order is affirmed insofar as appealed from, with costs.
A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) "may be appropriatelygranted only where the documentary evidence utterly refutes plaintiff's factual allegations,conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. ofN.Y., 98 NY2d 314, 326 [2002]; seeRuby Falls, Inc. v Ruby Falls Partners, LLC, 39 AD3d 619 [2007]). Here, the net leasesubmitted by the defendant seller in support of the motion included a provision that limited itsliability. The provision stated that upon the sale of the subject property, the defendant sellerwould be "entirely freed and relieved of all existing and future covenants, obligations andliabilities." Since it was undisputed that the sale of the subject premises was final in May 2006,the documentary evidence conclusively established a defense to the plaintiff buyer's claims torecover damages under the first and second causes of action, which were to recover foroverpayment of rent and to recover security deposit interest, respectively, pursuant to the netlease (see CPLR 3211 [a]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314,326 [2002]; Selinger Enters., Inc. vCassuto, 50 AD3d 766 [2008]; Sargent v New York Daily News, L.P., 42 AD3d 491 [2007]).[*2]
In light of the foregoing, the plaintiff's remainingcontentions are academic. Mastro, J.P., Skelos, Balkin and Leventhal, JJ., concur. [See2007 NY Slip Op 30892(U).]