| Martinez v La Colonia Rest. |
| 2008 NY Slip Op 08101 [55 AD3d 801] |
| October 21, 2008 |
| Appellate Division, Second Department |
| Melvin Martinez et al., Respondents, v La Colonia Restaurant etal., Defendants, and Sukhnanan Sukhnanan et al., Appellants. |
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In an action to recover damages for personal injuries, the defendants Sukhnanan Sukhnanan andSeerojini Sukhnanan appeal from an order of the Supreme Court, Kings County (Johnson, J.), datedDecember 11, 2007, which denied that branch of their motion pursuant to CPLR 3211 (a) (1) and (7)which was to dismiss the complaint insofar as asserted against them.
Ordered that the order is affirmed, without costs or disbursements.
On a motion pursuant to CPLR 3211 (a) (7) to dismiss a complaint, the pleading must be affordeda liberal construction. The court must accept as true the facts alleged in the complaint and submissionsin opposition to the motion, accord the plaintiffs the benefit of every possible favorable inference, anddetermine only whether the facts fit within any cognizable legal theory (see Leon v Martinez, 84NY2d 83, 87-88 [1994]; Farber v Breslin,47 AD3d 873, 876 [2008]).
Contrary to the appellants' contentions, the complaint sufficiently states a cause of action to recoverdamages arising from the alleged failure to properly retain control over the subject premises or over theoperation of the business conducted on the premises (see Donohue v S.R.O. Cafe, 300 AD2d433 [2002]; Borelli v 1051 Realty Corp., 242 AD2d 517 [1997]).
A motion pursuant to CPLR 3211 (a) (1) to dismiss a complaint on the ground that the action isbarred by documentary evidence may be granted only where the documentary evidence utterly refutesthe plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law (seeGoshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Farber v Breslin, 47 AD3d 873, [*2]876 [2008]). Here, the appellants' documentary submissions do notutterly refute the plaintiffs' allegations or conclusively establish that they did not retain or exercise controlof a business known as La Colonia Restaurant on the subject premises (see Farber v Breslin, 47 AD3d 873,876-877 [2008]). The affidavit of the defendant Seerojini Sukhnanan does not constitute documentaryevidence (see Fleming v Kamden Props.,LLC, 41 AD3d 781, 782 [2007]; Berger v Temple Beth-El of Great Neck, 303AD2d 346, 347 [2003]). Accordingly, the Supreme Court properly denied that branch of theappellants' motion which was to dismiss the complaint insofar as asserted against them. Mastro, J.P.,Angiolillo, Carni and Eng, JJ., concur.