| Jaymer Communications, Inc. v Associated Locksmiths of Am.,Inc. |
| 2011 NY Slip Op 04005 [84 AD3d 888] |
| May 10, 2011 |
| Appellate Division, Second Department |
| Jaymer Communications, Inc., Appellant, v AssociatedLocksmiths of America, Inc., Respondent. |
—[*1] Ross & Asmar, LLC, New York, N.Y. (Steven B. Ross of counsel), for respondent.
In an action to recover damages for breach of contract, the plaintiff appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated May12, 2010, as granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a)(7).
Ordered that the order is affirmed insofar as appealed from, with costs.
" 'On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, the court must afford the pleading a liberal construction, accept all facts asalleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory' " (East Hampton Union Free School Dist. vSandpebble Bldrs., Inc., 66 AD3d 122, 125 [2009], affd 16 NY3d 775 [2011],quoting Breytman v Olinville Realty,LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87[1994]). However, "bare legal conclusions and factual claims which are flatly contradicted by therecord are not presumed to be true" (Parola, Gross & Marino, P.C. v Susskind, 43 AD3d 1020,1021-1022 [2007]; see Kupersmith vWinged Foot Golf Club, Inc., 38 AD3d 847, 848 [2007]).
Here, the Supreme Court properly granted the defendant's motion to dismiss the complaintpursuant to CPLR 3211 (a) (7). The complaint failed to sufficiently allege the existence of a validand binding contract between the plaintiff and the defendant (see Mandarin Trading Ltd. v Wildenstein, 65 AD3d 448, 451[2009], affd 16 NY3d 173 [2011]; Infrastructure Mgt. Sys. v County of Nassau, 2 AD3d 784, 786[2003]).
The plaintiff's remaining contentions either are not properly before this Court, or do notwarrant reversal. Rivera, J.P., Skelos, Sgroi and Miller, JJ., concur.