| Matter of Baugher |
| 2012 NY Slip Op 06295 [98 AD3d 1111] |
| September 26, 2012 |
| Appellate Division, Second Department |
| In the Matter of Phebe H. Baugher, Deceased. Jonathon KirkBaugher, Respondent; William Hugh Baugher et al., Appellants. |
—[*1] Cullen and Dykman LLP, Brooklyn, N.Y. (Michael P. Ryan, Glenn A. Opell, Ronald J.Rosenberg, and John L. Gardiner of counsel), for respondent.
In a probate proceeding in which Jonathon Kirk Baugher, the preliminary executor of thedecedent's estate, petitioned pursuant to SCPA 2103 and 2104 to recover certain property onbehalf of the estate, William Hugh Baugher, Laraine Baugher Stuek, Ralph Edmond Baugher,Richard Scott Baugher, Lisa Baugher Eppley, and W.S. Wilson Corporation appeal from somuch of an order of the Surrogate's Court, Nassau County (Riordan, S.), dated December 23,2010, as denied their motion to dismiss the petition pursuant to CPLR 3211 (a) (1) and (7) basedon documentary evidence, failure to state a cause of action, laches, and estoppel, and to imposesanctions on the petitioner pursuant to 22 NYCRR 130-1.1.
Ordered that the order is affirmed insofar as appealed from, with costs payable by theappellants personally.
"Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidencesubmitted conclusively establishes a defense to the asserted claims as a matter of law" (Leonv Martinez, 84 NY2d 83, 88 [1994]; see Matter of Chin, 79 AD3d 867, 868 [2010]). Here, theSurrogate's Court properly denied that branch of the subject motion which was to dismiss thepetition pursuant to CPLR 3211 (a) (1), as the documentary evidence submitted in support of themotion did not resolve all the factual issues as a matter of law and conclusively dispose of thepetitioner's contentions (see Leon v Martinez, 84 NY2d at 88).
In determining whether a pleading is sufficient to withstand a motion to dismiss pursuant toCPLR 3211 (a) (7), "the sole criterion is whether the pleading states a cause of action, and iffrom its four corners factual allegations are discerned which taken together manifest any cause ofaction cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg, 43NY2d 268, 275 [1977]). "The [pleading] must be construed liberally, the factual allegationsdeemed to be true, and the nonmoving party granted the benefit of every possible favorableinference" (Hense v Baxter, 79AD3d 814, 815 [2010]; see Nonnonv City of New York, 9 NY3d 825, 827 [2007]; Leon v Martinez, 84 NY2d at 87;Kopelowitz & Co., Inc. v Mann, 83AD3d 793, 796-797 [2011]). In addition, a court may consider any [*2]factual submissions made in opposition to a motion to dismiss inorder to remedy pleading defects (see CPLR 3211 [c]; Quinones v Schaap, 91 AD3d 739,740 [2012]; Ryan v Cover, 75AD3d 502, 503 [2010]).
The Surrogate's Court properly denied that branch of the appellants' motion which was todismiss the petition pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. Thepetition, when considered with certain documents submitted by the petitioner in opposition to themotion, effectively alleges that the petitioner's decedent was entitled to recover retained andcurrent earnings from the appellant W.S. Wilson Corporation.
Further, the Surrogate's Court properly denied that branch of the appellants' motion whichwas to dismiss the petition on the ground of laches, as the appellants failed to demonstrateprejudice (see Town of Huntington vCounty of Suffolk, 79 AD3d 207, 216-217 [2010]). In addition, the court providentlyexercised its discretion in denying that branch of the motion which was for the imposition ofsanctions against the petitioner (seeMaybaum v Maybaum, 89 AD3d 692 [2011]; Gureje v Richardson, 78 AD3d 997 [2010]).
The appellants' remaining contentions are without merit. Dillon, J.P., Leventhal, Hall andAustin, JJ., concur.