| Holster v Cohen |
| 2011 NY Slip Op 00187 [80 AD3d 565] |
| January 11, 2011 |
| Appellate Division, Second Department |
| Charles E. Holster III, Appellant, v Frank D. Cohen,Respondent. |
—[*1] Jason T. Cohen and Andrew J. Scholz, Brooklyn, N.Y., for respondent (one brief filed).
In an action to recover damages pursuant to the Telephone Consumer Protection Act of 1991 (47USC § 227), the plaintiff appeals from an order of the Supreme Court, Nassau County(Murphy, J.), entered January 15, 2010, which granted that branch of the defendant's motion whichwas to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action.
Ordered that the order is reversed, on the law, with costs, and that branch of the defendant'smotion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause ofaction is denied.
The plaintiff alleged that the defendant sent unsolicited advertisements to him in violation of theTelephone Consumer Protection Act of 1991 (47 USC § 227) (hereinafter the TCPA), whichmakes it unlawful, inter alia, to use a telephone facsimile to send an unsolicited advertisement.
On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, thecourt must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of everypossible inference, and determine only whether the facts as alleged fit within any cognizable legal theory(see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon vMartinez, 84 NY2d 83, 87 [1994]; Sokol v Leader, 74 AD3d 1180 [2010]). "Where a party offersevidentiary proof on a CPLR 3211 (a) (7) motion, the focus of the inquiry turns from whether thecomplaint states a cause of action to whether the plaintiff actually has one" (East Hampton Union Free School Dist. vSandpebble Bldrs., Inc., 66 AD3d 122, 128 [2009]; see Guggenheimer v Ginzburg,43 NY2d 268, 275 [1977]).
Here, the Supreme Court improperly granted that branch of the defendant's motion which was todismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. The TCPAprohibits the use of "any telephone facsimile machine . . . to send . . . anunsolicited advertisement" (47 USC § 227 [b] [1] [C]). Here, the plaintiff sufficiently alleged thathe received unsolicited advertisements from the defendant via facsimile, in violation of the TCPA (cf. Stern v Bluestone, 12 NY3d 873[2009]), and the defendant did not submit any proof showing that "a material fact as claimed by thepleader to be one is not a fact at all" and that "no significant dispute [*2]exists regarding it" (Guggenheimer v Ginzburg, 43 NY2d at275). Mastro, J.P., Balkin, Eng and Hall, JJ., concur.