| Reid v Gateway Sherman, Inc. |
| 2009 NY Slip Op 01969 [60 AD3d 836] |
| March 17, 2009 |
| Appellate Division, Second Department |
| Donna Reid et al., Respondents, v Gateway Sherman, Inc.,et al., Respondents, et al., Defendants, and Renaissance Equity Holdings, L.L.C.,Appellant. |
—[*1] Phyllis K. Saxe, New York, N.Y., for plaintiffs-respondents. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Marcia K.Raicus and Joel M. Simon of counsel), for defendants-respondents.
In an action to recover damages for personal injuries, etc., the defendant Renaissance EquityHoldings, L.L.C., appeals, as limited by its brief, from so much of an order of the SupremeCourt, Kings County (Martin, J.), dated March 31, 2008, as denied its motion pursuant to CPLR3211 (a) (1) and (7) to dismiss the complaint and all cross claims insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs to therespondents appearing separately and filing separate briefs.
This is an action to recover damages for personal injuries allegedly arising out of a toxicmold condition in the residential apartment rented by the plaintiffs. The appellant, RenaissanceEquity Holdings, L.L.C. (hereinafter Renaissance), moved pursuant to CPLR 3211 (a) (1) and(7) to dismiss the complaint and all cross claims insofar as asserted against it on the ground thatit purchased the building in which the plaintiffs' apartment was located on October 7, 2005, morethan three years after the alleged toxic condition arose and that, subsequent to the purchase, ithad insufficient notice of the condition to be found negligent for failing to correct it. Thecomplaint alleges, however, that the condition persisted until the date of the complaint, August17, 2006.
Accepting the facts as alleged in the complaint to be true and allowing the plaintiffs the[*2]benefit of every possible favorable inference, as we must (see Nonnon v City of New York, 9NY3d 825, 827 [2007]; AG CapitalFunding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]; Leonv Martinez, 84 NY2d 83, 87 [1994]), the complaint states a cause of action againstRenaissance by alleging that it owned the building in which the allegedly toxic mold conditionwas present, it had notice of that condition, and it had a reasonable time to repair it, but failed todo so (see Litwack v Plaza Realty Invs.,Inc., 11 NY3d 820, 821 [2008]). Accordingly, the Supreme Court correctly denied thatbranch of Renaissance's motion which was pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint insofar as asserted against it.
In order to prevail on a motion to dismiss based upon documentary evidence, pursuant toCPLR 3211 (a) (1), "the documentary evidence which forms the basis of the defense must besuch that it resolves all factual issues as a matter of law, and conclusively disposes of theplaintiff's claim" (McCue v County ofWestchester, 18 AD3d 830, 831 [2005]; see Leon v Martinez, 84 NY2d 83, 88[1994]). The documentary evidence submitted by Renaissance established the date of theconveyance, which is undisputed, but that fact alone was not sufficient to establish thatRenaissance did not have notice of the allegedly dangerous condition or a reasonable opportunityto repair it. The Supreme Court, therefore, correctly denied that branch of the motion ofRenaissance which was to dismiss the complaint and all cross claims insofar as asserted againstit on the basis of documentary evidence. Prudenti, P.J., Spolzino, Ritter and Santucci, JJ., concur.