| JP Morgan Chase v J.H. Elec. of N.Y., Inc. |
| 2010 NY Slip Op 00477 [69 AD3d 802] |
| January 19, 2010 |
| Appellate Division, Second Department |
| JP Morgan Chase, Appellant, v J.H. Electric of New York,Inc., Respondent. |
—[*1] Steven G. Rubin, Jericho, N.Y., for respondent.
In an action to recover damages for breach of contract, the plaintiff appeals from (1) an orderof the Supreme Court, Suffolk County (Pitts, J.), dated January 20, 2009, which granted thedefendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (7), and (2) a judgmentof the same court entered March 30, 2009, which, upon the order, is in favor of the defendantand against it dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the defendant's motion to dismiss thecomplaint is denied, the complaint is reinstated, and the order is modified accordingly; and it isfurther,
Ordered that one bill of costs is awarded to the appellant.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
In 2007 the plaintiff, as assignee of the receivables of Hallmark Electrical Supplies Corp.(hereinafter Hallmark), commenced this action to recover damages in the sum of $108,323.01based on accounts receivables for goods sold and delivered by Hallmark to the defendant. Thedefendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, asserting that the complaint was conclusory and legally insufficient, and theSupreme Court granted the motion. We reverse.
"On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must afford the pleadings aliberal construction, accept the allegations of the complaint as true, and provide the plaintiff thebenefit of every possible favorable inference" (Halliwell v Gordon, 61 AD3d 932, 933 [2009]; see AG Capital [*2]Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d582, 591 [2005]; Leon v Martinez, 84 NY2d 83, 87 [1994]; Guggenheimer vGinzburg, 43 NY2d 268, 275 [1977]). The test to be applied is whether the complaint "givessufficient notice of the transactions, occurrences, or series of transactions or occurrencesintended to be proved and whether the requisite elements of any cause of action known to ourlaw can be discerned from its averments" (Moore v Johnson, 147 AD2d 621, 621 [1989],quoting Pace v Perk, 81 AD2d 444, 449 [1981]; see Conroy v Cadillac FairviewShopping Ctr. Props. [Md.], 143 AD2d 726 [1988]).
Applying these principles to the instant matter, we find that the complaint adequately allegesall of the essential elements of a cause of action to recover damages for breach of contract, towit: the existence of a contract, the plaintiff's performance under the contract, the defendant'sbreach of that contract, and resulting damages (see Agway, Inc. v Curtin, 161 AD2d1040, 1041 [1990]; Furia v Furia, 116 AD2d 694, 695 [1986]). Accordingly, thecomplaint sufficiently stated a cause of action to recover damages for breach of contract (seeCPLR 3211 [a] [7]).
The defendant's remaining contention is not properly before this Court (see DiSanto v DiSanto, 29 AD3d935 [2006]). Mastro, J.P., Florio, Balkin and Leventhal, JJ., concur.