| Troccoli v Zarabi |
| 2008 NY Slip Op 10607 [57 AD3d 971] |
| December 30, 2008 |
| Appellate Division, Second Department |
| Cheryl A. Troccoli, Appellant, v Isaac Zarabi,Respondent. |
—[*1] Martins & Silva, Mineola, N.Y. (Marco D. Silva of counsel), for respondent.
In an action, inter alia, to recover damages for fraudulent inducement, the plaintiff appealsfrom an order of the Supreme Court, Queens County (Dorsa, J.), entered January 28, 2008, whichgranted that branch of the defendant's motion which was to dismiss the complaint pursuant toCPLR 3211 (a) (1).
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendant's motion which was to dismiss the cause of action alleging fraudulentinducement, and substituting therefor a provision denying that branch of the motion; as somodified, the order is affirmed, with costs to the plaintiff.
"In the context of a CPLR 3211 motion to dismiss, the pleadings are necessarily afforded aliberal construction," and the plaintiff is accorded the benefit of every favorable inference(Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). A motion to dismisspursuant to CPLR 3211 (a) (1) on the ground of a defense founded on documentary evidence mayappropriately be granted "only where the documentary evidence utterly refutes [the] plaintiff'sfactual allegations, conclusively establishing a defense as a matter of law" (id.; seeShaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34,37-38 [2006]; Williams v Williams, 36 AD3d 693, 695 [2007]).
The documentary evidence submitted by the defendant did not utterly refute the plaintiff's[*2]allegations, and thus did not conclusively establish a defenseto that cause of action as a matter of law. Accordingly, the Supreme Court erred in granting thatbranch of the defendant's motion which was to dismiss the cause of action alleging fraudulentinducement.
The plaintiff's remaining contentions are without merit Mastro, J.P., Miller, Angiolillo andCarni, JJ., concur.