| Granada Condominium III Assn. v Palomino |
| 2010 NY Slip Op 08699 [78 AD3d 996] |
| November 23, 2010 |
| Appellate Division, Second Department |
| Granada Condominium III Association, Appellant, v KarimPalomino, Respondent. |
—[*1] Karen Copeland, New York, N.Y., for respondent.
In an action, inter alia, for a permanent injunction, the plaintiff appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), datedNovember 23, 2009, as granted that branch of the defendant's motion which was pursuant toCPLR 3211 (a) (1) to dismiss the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendant's motion which was pursuant to CPLR 3211 (a) (1) to dismiss thecomplaint is denied.
The plaintiff commenced this action against the defendant, a unit owner in the plaintiff'scondominium complex, for violating a condominium rule prohibiting unit owners from harboringpets that regularly frequent the outside of the unit. The Supreme Court granted that branch of thedefendant's motion which was pursuant to CPLR 3211 (a) (1) to dismiss the complaint. Wereverse.
On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded aliberal construction and the plaintiff's allegations are accepted as true and accorded the benefit ofevery possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Reiver v Burkhart Wexler & Hirschberg,LLP, 73 AD3d 1149 [2010]). A motion to dismiss a complaint pursuant to CPLR 3211(a) (1) may be granted only if the documentary evidence submitted by the defendant utterlyrefutes the factual allegations of the complaint and conclusively establishes a defense to theclaims as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326[2002]; First Keystone Consultants, Inc.v DDR Constr. Servs., 74 AD3d 1135 [2010]). In order for evidence to qualify as"documentary," it must be unambiguous, authentic, and undeniable (Fontanetta v John Doe 1, 73 AD3d78, 84-86 [2010]). Neither affidavits, deposition testimony, nor letters are considered"documentary evidence" within the intendment of CPLR 3211 (a) (1) (see Suchmacher v Manana Grocery, 73AD3d 1017 [2010]; Fontanetta v John Doe 1, 73 AD3d at 85-87).
Here, the material submitted by the defendant in support of her motion, namely, her ownaffidavit and a letter sent to her from the plaintiff's attorney, did not constitute "documentaryevidence" within the meaning of CPLR 3211 (a) (1). Even if it had constituted documentaryevidence, it failed to utterly refute the plaintiff's allegations and conclusively establish a defenseas [*2]a matter of law (see Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d 1149[2010]; Fontanetta v John Doe 1, 73AD3d 78 [2010]).
The Supreme Court erred in determining that the Westchester County Pet Law (Laws ofWestchester County § 695.11 [1]) applies to condominiums and their unit owners. InBoard of Mgrs. v Lamontanero (206 AD2d 340 [1994]), this Court interpreted the NewYork City Pet Law (see Administrative Code of City of NY § 27-2009.1). Wedetermined that because the lawmakers there specifically excluded buildings owned andmanaged by the New York City Housing Authority from the ambit of the legislation, withoutrecognizing other exclusions, the application of the New York City Pet Law should beexpansively interpreted to include not only tenants, but condominium unit owners as well. Bycontrast, the Westchester County Pet Law makes no exclusions. Its plain and unambiguouslanguage expressly provides that it applies to "tenant[s] in a multiple dwelling" (Laws ofWestchester County § 695.11 [1]) and that its protections extend only to tenants governedby leases, including proprietary leases in cooperatives. As such, an irrefutable inference must bedrawn that the omission of condominiums and condominium owners was so intended by theWestchester County Legislature (seeMatter of Caspian Realty, Inc. v Zoning Bd. of Appeals of Town of Greenburgh, 68 AD3d62, 71 [2009]; McKinney's Cons Laws of NY, Book 1, Statutes § 240).
The defendant's remaining contentions either are without merit or have been renderedacademic by our determination. Dillon, J.P., Florio, Leventhal and Chambers, JJ., concur.