| Cog-Net Bldg. Corp. v Travelers Indem. Co. |
| 2011 NY Slip Op 06014 [86 AD3d 585] |
| July 19, 2011 |
| Appellate Division, Second Department |
| Cog-Net Building Corp., Respondent, v TravelersIndemnity Company, Defendant, and Russo Picciurro Maloy, LLC, Doing Business as RPMInsurance Agency, Appellant. |
—[*1] Craig A. Blumberg, New York, N.Y., for respondent.
In an action, inter alia, to recover damages for negligence, the defendant Russo PicciurroMaloy, LLC, doing business as RPM Insurance Agency, appeals from an order of the SupremeCourt, Richmond County (Maltese, J.), dated August 27, 2010, which denied its motion pursuantto CPLR 3211 (a) (1) and (7) to dismiss the complaint insofar as asserted against it.
Ordered that the order is affirmed, with costs.
A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only wherethe documentary evidence submitted by the movant utterly refutes the plaintiff's allegationsagainst it and conclusively establishes a defense as a matter of law (see Goshen v Mutual LifeIns. Co. of N.Y., 98 NY2d 314, 326 [2002]; Rietschel v Maimonides Med. Ctr., 83 AD3d 810, 811 [2011]; Fontanetta v John Doe 1, 73 AD3d78, 83 [2010]). Here, the documentary evidence submitted by the appellant failed to satisfythis standard, and the Supreme Court properly denied that branch of the appellant's motion whichwas pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against it.
Furthermore, "[i]n considering a motion to dismiss a complaint pursuant to CPLR 3211 (a)(7), 'the court must accept the facts as alleged in the complaint as true, accord plaintiffs thebenefit of every possible favorable inference, and determine only whether the facts as alleged fitwithin any cognizable legal theory' " (Ascani v EI Du Pont de Nemours & Co., 85 AD3d830, 830 [2011], quoting Sokol vLeader, 74 AD3d 1180, 1181 [2010]; see Leon v Martinez, 84 NY2d 83, 87-88[1994]). "Where evidentiary material is submitted and considered on a motion to dismiss acomplaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summaryjudgment, the question becomes whether the plaintiff has a cause of action, not whether theplaintiff has stated one and, unless it has been shown that a material fact as claimed by theplaintiff to be one is not a fact at all and unless it can be said that no significant dispute existsregarding it, dismissal should not eventuate" (Rietschel v Maimonides Med. Ctr., 83AD3d at 810; see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Sokol vLeader, 74 AD3d at 1180-1181). The [*2]plaintiff alleged inits complaint that it had a relationship with the appellant "so close as to approach that of privity"(Sykes v RFD Third Ave. 1 Assoc.,LLC, 15 NY3d 370, 372 [2010] [internal quotation marks omitted]). Since the appellantfailed to show that this material fact alleged by the plaintiff was not a fact at all, and failed,moreover, to demonstrate that no significant dispute exists regarding the allegation, the appellantwas not entitled to dismissal of the causes of action sounding in negligent misrepresentation andnegligent failure to procure insurance (cf. Sykes v RFD Third Ave. 1 Assoc., LLC, 15 NY3d 370 [2010];Benjamin Shapiro Realty Co. v Kemper Natl. Ins. Cos., 303 AD2d 245, 245-246 [2003]).Accordingly, the Supreme Court properly denied that branch of the appellant's motion which waspursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it. Angiolillo,J.P., Dickerson, Hall and Roman, JJ., concur. [Prior Case History: 2010 NY Slip Op32497(U).]