| Bokhour v GTI Retail Holdings, Inc. |
| 2012 NY Slip Op 02444 [94 AD3d 682] |
| April 3, 2012 |
| Appellate Division, Second Department |
| Elyas Bokhour, Respondent, v GTI Retail Holdings, Inc.,Defendant, and Theodore Ketsoglou et al., Appellants. |
—[*1] Mehrdad Kohanim, Garden City, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of a commercial lease, the defendantsTheodore Ketsoglou and Andrew Seabury appeal from an order of the Supreme Court, NassauCounty (DeStefano, J.), entered November 7, 2011, which denied their motion pursuant to CPLR3211 (a) (7) to dismiss the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
"When a party moves to dismiss a complaint pursuant to CPLR 3211 (a) (7), the standard iswhether the pleading states a cause of action, not whether the proponent of the pleading has acause of action" (Sokol v Leader, 74AD3d 1180, 1180-1181 [2010]; see Guggenheimer v Ginzburg, 43 NY2d 268, 275[1977]). "In considering such a motion, the court must accept the facts as alleged in thecomplaint as true, accord plaintiffs the benefit of every possible favorable inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory" (Sokol vLeader, 74 AD3d at 1181 [internal quotation marks omitted]; see Nonnon v City of New York, 9NY3d 825, 827 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). " 'Whether aplaintiff can ultimately establish its allegations is not part of the calculus' " (Sokol vLeader, 74 AD3d at 1181, quoting EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).However, "[a] court is, of course, permitted to consider evidentiary material submitted by adefendant in support of a motion to dismiss pursuant to CPLR 3211 (a) (7)" (Sokol vLeader, 74 AD3d at 1181; see CPLR 3211 [c]). "If the court considers evidentiarymaterial, the criterion then becomes 'whether the proponent of the pleading has a cause of action,not whether he has stated one' " (Sokol v Leader, 74 AD3d at 1181-1182, quotingGuggenheimer v Ginzburg, 43 NY2d at 275). "Yet, affidavits submitted by a defendantwill almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [theplaintiff] has no cause of action" (Sokol v Leader, 74 AD3d at 1182 [internal quotationmarks omitted]; see Lawrence vGraubard Miller, 11 NY3d 588, 595 [2008]; Rovello v Orofino Realty Co., 40NY2d 633, 636 [1976]). "Indeed, a motion to dismiss pursuant to CPLR 3211 (a) (7) must bedenied 'unless it has been shown that a material fact as claimed by the pleader to be one is not afact at all and unless it can be said that no significant dispute exists regarding it' " (Sokol vLeader, 74 AD3d at 1182, quoting Guggenheimer v Ginzburg, 43 NY2d at 275).[*2]
Here, the appellants, who submitted evidentiary materialin support of their motion, failed to demonstrate that any fact alleged in the complaint wasundisputedly not a fact at all (see Guggenheimer v Ginzburg, 43 NY2d at 275; Sokolv Leader, 74 AD3d at 1182). Accordingly, the Supreme Court properly denied the appellants'motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them.Skelos, J.P., Dickerson, Eng and Leventhal, JJ., concur.