| Sarva v Self Help Community Servs., Inc. |
| 2010 NY Slip Op 04571 [73 AD3d 1155] |
| May 25, 2010 |
| Appellate Division, Second Department |
| Shailaja Sarva, Respondent, v Self Help CommunityServices, Inc., Defendant, and Department of Social Services of City of New York,Appellant. |
—[*1] Bernard Ouziel, Great Neck, N.Y., for respondent.
In an action to recover damages for the alleged taking of private property for public usewithout just compensation, the defendant Department of Social Services of the City of New Yorkappeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County(Grays, J.), entered September 17, 2009, as denied its motion pursuant to CPLR 3211 (a) (7) todismiss the amended complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to state a causeof action, the pleading is to be afforded a liberal construction (see Kempf v Magida, 37AD3d 763, 764 [2007]). The court must accept the facts as alleged in the complaint as true,accord the plaintiff the benefit of every possible favorable inference, and determine whether thefacts as alleged fit within any cognizable legal theory (see Tom Winter Assoc., Inc. vSawyer, 72 AD3d 803 [2010]).
Here, the Supreme Court, in accordance with this standard, properly denied the appellant'smotion to dismiss the amended complaint insofar as asserted against it. Affording the plaintiff aliberal construction of her pleading, as well as every favorable inference, we find that theamended complaint states a cause of action for the taking of her property for public use withoutjust compensation.
Contrary to the appellant's contention, neither Matter of Serafin M. (17 AD3d 596[2005]) nor Matter of Stephen B. (17 AD3d 584 [2005]) calls for a different result here.In those two cases, the property owners did not identify any statutory, contractual, or other basisfor their claims. Thus, the issue of whether there had been a taking of their property without justcompensation was not litigated. Here, in contrast, the plaintiff's amended complaint explicitlyalleges a constitutional basis for her claim. Rivera, J.P., Florio, Miller and Austin, JJ., concur.