| Amaro v Gani Realty Corp. |
| 2009 NY Slip Op 01852 [60 AD3d 491] |
| March 17, 2009 |
| Appellate Division, First Department |
| Natalia Amaro, an Infant, by Her Mother and Natural Guardian,Francisca Almazan, Respondent, v Gani Realty Corporation et al., Appellants, et al.,Defendants. |
—[*1] Gorayeb & Associates, P.C., New York (Mark J. Elder of counsel), for respondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered May 1,2008, which, in an action for personal injuries allegedly caused by lead-based paint, insofar asappealed from, denied defendants landlord and managing agent's cross motion to dismiss thecomplaint, deemed the amended complaint and second supplemental bill of particulars timelyserved, and sua sponte consolidated the action with another action brought by plaintiffs againstthe owner of the building they moved into after moving out of defendants' building, unanimouslyaffirmed, without costs.
On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberalconstruction (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The court must accept thefacts alleged in the complaint as true and accord the plaintiffs the benefit of every possiblefavorable inference (Leon v Martinez, 84 NY2d at 87). Under CPLR 3211 (a) (1), adismissal is warranted only if the documentary evidence submitted conclusively establishes adefense to the asserted claims as a matter of law (id. at 88). In assessing a motion underCPLR 3211 (a) (7), however, a court may freely consider affidavits submitted by the plaintiff toremedy any defects in the complaint, the criterion being not whether the proponent of thepleading has simply stated a cause of action, but whether he or she actually has one(Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977] [motion must be denied if "from(the) four corners (of the pleading) factual allegations are discerned which taken togethermanifest any cause of action cognizable at law"]; Wiener v Lazard Freres & Co., 241AD2d 114 [1998]).
Giving plaintiffs the benefit of every possible favorable inference (see Rovello v OrofinoRealty Co., 40 NY2d 633, 634 [1976]), defendants' evidence that plaintiffs were not thetenants of record, that plaintiffs' occupancy of the apartment was not known to them, and thatthey did not have notice that a child under seven years old was living in the apartment is rebuttedby plaintiffs' evidence that, for approximately two months during the summer of 2004, they livedin [*2]the apartment with the tenant of record, who was the adultplaintiff's sister, and the latter's two daughters, one of whom was under seven years old at thetime. It thus appears that defendants had notice that at least one child under seven was living inthe apartment (see Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 646 [1996]). Forpresent purposes, the contradiction between the original complaint's allegation that plaintiffswere living in the apartment during the summer of 2003 and plaintiffs' pleadings in the otheraction that they were living in Chicago during the summer of 2003 was adequately explained asa typographical error or miscommunication with counsel, and, like the inconsistent statementsmade in the pleadings in the other action concerning plaintiffs' residence during the summer of2004 merely raises issues of credibility for the factfinder.
The court properly permitted plaintiffs to amend the complaint and serve the secondsupplemental bill of particulars, dispensing with a motion for leave to amend, where there wasno showing of prejudice by defendants (see Cherebin v Empress Ambulance Serv., Inc., 43 AD3d 364, 365[2007]), and, in opposition to defendants' cross motion to dismiss, plaintiffs submittedevidentiary proof that would have satisfied their burden on a motion for leave. The motion courtproperly consolidated two actions that concern the same injuries to the same plaintiffs andinvolve many common issues of law and fact. Concur—Saxe, J.P., Catterson, McGuire,Moskowitz and Acosta, JJ.