| Jannetti v Whelan |
| 2012 NY Slip Op 05726 [97 AD3d 797] |
| July 25, 2012 |
| Appellate Division, Second Department |
| David Jannetti, Appellant, v Mary M. Whelan et al.,Respondents. |
—[*1] David Lee Heller, Sag Harbor, N.Y. (Patricia Weiss of counsel), for respondents.
In an action, inter alia, for specific performance of a contract for the sale of real property, theplaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, SuffolkCounty (Gazzillo, J.), dated April 7, 2011, as granted that branch of the defendants' motion whichwas pursuant to CPLR 3211 (a) (7) to dismiss the cause of action for specific performance.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendants' motion which was pursuant to CPLR 3211 (a) (7) to dismiss the causeof action for specific performance is denied.
On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to state a causeof action, the court must afford the complaint a liberal construction, accept all facts as alleged inthe complaint 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 (see Leon vMartinez, 84 NY2d 83, 87 [1994]). Contrary to the contention of the defendants, whoentered into a contract with the plaintiff for the sale of their home, applying this standard, thecomplaint sufficiently states a cause of action for specific performance of that contract (see EMF Gen. Contr. Corp. v Bisbee, 6AD3d 45, 51 [2004]).
A court may consider evidentiary material submitted by a defendant in support of a motion todismiss a complaint pursuant to CPLR 3211 (a) (7) (see CPLR 3211 [c]; Sokol v Leader, 74 AD3d 1180,1181 [2010]). "When evidentiary material is considered" on a motion to dismiss a complaintpursuant to CPLR 3211 (a) (7), and the motion has not been converted to one for summaryjudgment, "the criterion is whether the [plaintiff] has a cause of action, not whether he [or she]has stated one, and, unless it has been shown that a material fact as claimed by the [plaintiff] tobe one is not a fact at all and unless it can be said that no significant dispute exists regarding it. . . dismissal should not eventuate" (Guggenheimer v Ginzburg, 43 NY2d268, 275 [1977]; see Sokol v Leader, 74 AD3d at 1181-1182). Here, the complaintalleged that the defendants anticipatorily repudiated the contract for the sale of their home, andthe defendants submitted certain evidentiary material in an attempt to [*2]establish that they did not anticipatorily repudiate the contract.However, the evidentiary material submitted by the defendants failed to establish that theallegation "was undisputedly not a fact at all" (Bokhour v GTI Retail Holdings, Inc., 94 AD3d 682, 683 [2012]; see Makris v Darus-Salaam Masjid, N.Y.,Inc., 91 AD3d 729, 731 [2012]).
Accordingly, the Supreme Court should have denied that branch of the defendants' motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action for specific performance.Skelos, J.P., Balkin, Leventhal and Roman, JJ., concur.