| Kass v Zaslav |
| 2008 NY Slip Op 08296 [55 AD3d 877] |
| October 28, 2008 |
| Appellate Division, Second Department |
| Sharon Kass, Appellant, v Janice Zaslav et al.,Respondents. |
—[*1] Steven Lee Zaslav, P.C., New York, N.Y., for respondents.
In an action, inter alia, for a judgment declaring that the defendants wrongly deprived the plaintiff ofthe enjoyment of her property, the plaintiff appeals from an order of the Supreme Court, RocklandCounty (Garvey, J.), dated September 25, 2007, which denied her motion to strike the sixth affirmativedefense and to dismiss the counterclaim asserted in the defendants' separate answers, and granted thatbranch of the defendants' joint cross motion which was, in effect, to dismiss the complaint pursuant toCPLR 3211 (a) (7).
Ordered that the order is affirmed, with costs.
In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a)(7), a court "should 'accept the facts as alleged in the complaint as true, accord plaintiffs the benefit ofevery possible favorable inference, and determine only whether the facts as alleged fit within anycognizable legal theory' " (Parsippany Constr.Co., Inc. v Clark Patterson Assoc., P.C., 41 AD3d 805, 806 [2007], quoting Leon vMartinez, 84 NY2d 83, 87-88 [1994]). Applying this standard here, the complaint does not statea cause of action against the defendants. Accordingly, the Supreme Court properly granted that branchof the cross motion which was to dismiss the complaint.
The parties' remaining contentions are without merit. Spolzino, J.P., Lifson, Dickerson andChambers, JJ., concur.