| Crane v BPC Mgt. Corp. |
| 2011 NY Slip Op 09082 [90 AD3d 692] |
| December 13, 2011 |
| Appellate Division, Second Department |
| Samuel Sonny Crane, as a Shareholder and on Behalf of All OtherShareholders of BPC Management Corp. and Progressive Management Corp. Similarly Situated,Respondent, v BPC Management Corp. et al., Appellants. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Marianne S. Conklin ofcounsel), for respondent.
In a shareholders' derivative action, inter alia, to recover damages for breach of fiduciaryduty, the defendants appeal, as limited by their brief, from so much of an order of the SupremeCourt, Nassau County (Adams, J.), dated September 13, 2010, as denied that branch of theirmotion which was 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" (Breytman v Olinville Realty, LLC, 54AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]). Whereevidentiary material is submitted and considered on a motion to dismiss a complaint pursuant toCPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the questionbecomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and,unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact atall and unless it can be said that no significant dispute exists regarding it, dismissal should noteventuate (see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275 [1977]; Fishberger v Voss, 51 AD3d 627,628 [2008]).
Here, contrary to the defendants' contention, the complaint sufficiently states causes of actionalleging breach of fiduciary duty, unlawful diversion of funds, waste of corporate funds, unlawfultransfer of corporate assets and funds, and conversion (see Putter v Putter, 80 AD3d 742 [2011]; Castaldi v 39 Winfield Assoc., 30AD3d 458 [2006]; Morris v Morris, 306 AD2d 449, 451 [2003]). The evidentiarymaterial the defendants submitted failed to demonstrate that a material fact alleged in thecomplaint was "not a fact at all" (see Guggenheimer v Ginzburg, 43 NY2d at 275; Quesada v Global Land, Inc., 35 AD3d575, 576 [2006]). Accordingly, the Supreme Court properly denied that branch of thedefendants' motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7). Mastro,A.P.J., Chambers, Austin and Miller, JJ., concur.