| Nunez v Mohamed |
| 2013 NY Slip Op 02058 [104 AD3d 921] |
| March 27, 2013 |
| Appellate Division, Second Department |
| Ericka C. Nunez et al., Plaintiffs, v ShameerMohamed, Defendant, and Hamida Mohamed, Defendant/Third-PartyPlaintiff-Respondent. Oliver C. McNicholas, Third-Party Defendant-Appellant, et al.,Third-Party Defendants. |
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In an action to recover damages for personal injuries, the third-party defendantOliver C. McNicholas appeals, as limited by his brief, from so much of an order of theSupreme Court, Kings County (Lewis, J.), dated April 13, 2012, as denied thosebranches of his motion which were to dismiss the third-party complaint insofar asasserted against him pursuant to CPLR 3211 (a) or, alternatively, pursuant to CPLR 3211(c) and 3212 for summary judgment dismissing the third-party complaint insofar asasserted against him.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
A motion to dismiss a complaint based upon documentary evidence may beappropriately granted only where the documentary evidence utterly refutes the plaintiff'sfactual allegations, conclusively establishing a defense as a matter of law (see Goshenv Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez,84 NY2d 83, 87 [1994]; WildOaks, LLC v Joseph A. Beehan, Jr. Gen. Contr., Inc., 77 AD3d 924 [2010]; Roth v R & P Rest. Corp., 68AD3d 961 [2009]). Here, the documentary evidence submitted by the appellantfailed to satisfy this standard. Accordingly, the Supreme Court properly denied thatbranch of the appellant's motion which was pursuant to CPLR 3211 (a) (1) to dismiss thethird-party complaint insofar as asserted against him.
"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 forsummary judgment, the question becomes whether the plaintiff has a cause of action, notwhether the plaintiff has stated one and, unless it has been shown that a material fact asclaimed by the plaintiff to be one is not a fact at all and unless it can be said that nosignificant dispute exists regarding it, dismissal should not eventuate" (Rietschel v Maimonides Med.Ctr., 83 AD3d 810, 810 [2011]; see Cog-Net Bldg. Corp. v Travelers Indem. Co., 86 AD3d585, 586 [2011]). The defendant third-party plaintiff alleged in the third-partycomplaint that the appellant had been her insurance broker for more than 19 years andthat she relied on him to maintain the proper insurance for her property. She also averredin her affidavit in opposition to the subject motion that one of the appellant's employeesassured her that although one of the insurance companies would be unable to providegeneral liability coverage for [*2]the subject property, theappellant would procure the requested coverage from another carrier. Since the appellantfailed to show that these material facts alleged by the defendant third-party plaintiff werenot facts at all and failed to demonstrate that no significant dispute exists regarding theseallegations, the appellant was not entitled to dismissal of the third-party complaint insofaras asserted against him pursuant to CPLR 3211 (a) (7) (see Cog-Net Bldg. Corp. vTravelers Indem. Co., 86 AD3d at 586).
The appellant's remaining contentions are either without merit or improperly raisedfor the first time on appeal. Skelos, J.P., Leventhal, Austin and Sgroi, JJ., concur.