| Nouveau El. Indus., Inc. v Glendale Condominium Town &Tower Corp. |
| 2013 NY Slip Op 04787 [107 AD3d 965] |
| June 26, 2013 |
| Appellate Division, Second Department |
| Nouveau Elevator Industries, Inc.,Respondent, v Glendale Condominium Town and Tower Corp. et al.,Defendants, and Board of Managers of the Glendale Condominium,Appellant. |
—[*1] Paul J. Hooten, Mount Sinai, N.Y. (Jacqueline Muratore of counsel), forrespondent.
In an action to recover damages for breach of contract, for unjust enrichment, and onan account stated, the defendant Board of Managers of the Glendale Condominiumappeals from an order of the Supreme Court, Queens County (Markey, J.), dated July 17,2012, which denied its motion pursuant to CPLR 3211 (a) to dismiss the complaintinsofar as asserted against it or, in the alternative, for summary judgment dismissing thecomplaint insofar as asserted against it.
Ordered that the order is affirmed, with costs.
The defendant Board of Managers of the Glendale Condominium (hereinafter theBoard) moved pursuant to CPLR 3211 (a) to dismiss the complaint insofar as assertedagainst it or, in the alternative, for summary judgment dismissing the complaint insofaras asserted against it. The Supreme Court denied the Board's motion.
On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure tostate a cause of action, the court must afford the complaint a liberal construction(see CPLR 3026), "accept the facts as alleged in the complaint as true, accordplaintiffs the benefit of every possible favorable inference, and determine only whetherthe facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84NY2d 83, 87-88 [1994]). "The plaintiff's ultimate ability to prove those allegations is notrelevant" (Hae Sheng Wang vPao-Mei Wang, 96 AD3d 1005, 1008 [2012]).
Here, the Supreme Court properly denied that branch of the Board's motion whichwas pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it.Accepting the facts as alleged in the complaint as true, and according plaintiff the benefitof every possible favorable inference, the complaint adequately stated a cause of actionto recover damages for unjust enrichment against the Board (see generally Levin v Kitsis,82 AD3d 1051, 1052-1053 [2011]; Cruz v McAneney, 31 AD3d 54, 59 [2006]). Furthermore,contrary to the Board's contention, the allegations in the complaint, liberally construed,were sufficient to state a cause of action alleging breach of contract on the theory that theBoard affirmatively assumed the duties of a contract which allegedly was [*2]entered into between the plaintiff and the defendantGlendale Condominium Town and Tower Corp. (cf. Amalgamated Tr. Union Local 1181, AFL-CIO v City of NewYork, 45 AD3d 788, 790 [2007]; Todd v Krolick, 96 AD2d 695, 695[1983], affd 62 NY2d 836 [1984]). In addition, the allegations in the complaintwere sufficient to state a cause of action to recover on an account stated (see White Plains Cleaning Servs.,Inc. v 901 Props., LLC, 94 AD3d 1108, 1109 [2012]; Fleetwood Agency, Inc. v VerdeElec. Corp., 85 AD3d 850, 851 [2011]), and the complaint was sufficient tosatisfy the pleading requirements of CPLR 3016 (f) (see generally Leon vMartinez, 84 NY2d at 87-88; compare Raytone Plumbing Specialities, Inc. v Sano Constr.Corp., 92 AD3d 855, 856 [2012]).
The Supreme Court also properly denied that branch of the Board's motion whichwas for summary judgment dismissing the complaint insofar as asserted against it. Insupport of its motion, the Board merely submitted an attorney affirmation. As theplaintiff correctly contends, the attorney affirmation submitted by the Board was withoutevidentiary value to the extent that it was submitted to dispute the factual allegationscontained in the complaint (see CPLR 3212 [b]; Zuckerman v City of NewYork, 49 NY2d 557, 563 [1980]). Since the Board failed to establish, prima facie, itsentitlement to judgment as a matter of law, that branch of the Board's motion which wasfor summary judgment was properly denied, regardless of the sufficiency of the plaintiff'sopposition papers (see generally Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]). Eng, P.J., Balkin, Roman and Miller, JJ., concur.