| Constructamax, Inc. v Dodge Chamberlin Luzine Weber, Assoc.Architects, LLP |
| 2013 NY Slip Op 05671 [109 AD3d 574] |
| August 21, 2013 |
| Appellate Division, Second Department |
| Constructamax, Inc., Respondent, v DodgeChamberlin Luzine Weber, Associates Architects, LLP,Appellant. |
—[*1] Hollander & Strauss, LLP, Great Neck, N.Y. (John B. Fulfree of counsel), forrespondent.
In an action for contractual and common-law indemnification, the defendant appealsfrom an order of the Supreme Court, Nassau County (Galasso, J.), entered March 9,2012, which denied its motion, in effect, pursuant to CPLR 3211 (a) to dismiss theamended complaint.
Ordered that the order is affirmed, with costs.
"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 pleading a liberal construction, accept allfacts as alleged in the pleading to be true, accord the plaintiff the benefit of everypossible inference, and determine only whether the facts as alleged fit within anycognizable legal theory" (Breytman v Olinville Realty, LLC, 54 AD3d703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Where,as here, evidentiary material is submitted and considered on a motion pursuant to CPLR3211 (a) (7), and the motion is not converted into one for summary judgment, "thecriterion is whether the proponent of the pleading has a cause of action, not whether hehas stated one, and, unless it has been shown that a material fact as claimed by thepleader to be one is not a fact at all and unless it can be said that no significant disputeexists regarding it . . . dismissal should not eventuate" (Guggenheimer vGinzburg, 43 NY2d 268, 275 [1977]; see Nunez v Mohamed, 104 AD3d 921 [2013]; Rabos v R&R Bagels & Bakery,Inc., 100 AD3d 849, 851-852 [2012]).
Here, the amended complaint contains sufficient factual allegations to state causes ofaction for contractual and common-law indemnification against the defendant and infavor of the plaintiff, as assignee of the claims of the nonparty Locust Valley CentralSchool District (hereinafter Locust Valley). Under New York law, claims are generallyassignable (see Home DepotU.S.A., Inc. v National Fire & Mar. Ins. Co., 55 AD3d 671, 673 [2008];Greevy v Becker, Isserlis, Sullivan & Kurtz, 240 AD2d 539 [1997]). Moreover,"[n]o special form or language is necessary to effect an assignment as long as thelanguage shows the intention of the owner of a right to transfer it" (Tawil vFinkelstein [*2]Bruckman Wohl Most & Rothman,223 AD2d 52, 55 [1996]; seeSuraleb, Inc. v International Trade Club, Inc., 13 AD3d 612, 612 [2004];Matter of Stralem, 303 AD2d 120, 122 [2003]). Contrary to the defendant'scontention, it was not necessary for the plaintiff to enter into a "liquidating agreement"with Locust Valley, because the amended complaint sufficiently alleges facts which, ifproven, would establish that Locust Valley, the assignor, had viable claims forcontractual and common-law indemnification against the defendant in the absence ofsuch an agreement (seegenerally Canela v TLH 140 Perry St., LLC, 47 AD3d 743 [2008]; 17 VistaFee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 80 [1999]; cf. I.T.R.I. Masonry Corp. v Stateof New York, 21 AD3d 990 [2005]). Since the allegations in the amendedcomplaint are sufficient to state causes of action for contractual and common-lawindemnification, and since the evidentiary materials submitted by the defendant do notshow that the allegations are undisputedly not facts at all, the Supreme Court properlydenied that branch of the defendant's motion which was pursuant to CPLR 3211 (a) (7)to dismiss the amended complaint (see Guggenheimer v Ginzburg, 43 NY2d at275; Bokhour v GTI RetailHoldings, Inc., 94 AD3d 682, 683 [2012]; Rabos v R&R Bagels & Bakery,Inc., 100 AD3d at 852).
"A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be grantedonly if the documentary evidence submitted by the moving party utterly refutes thefactual allegations of the complaint and conclusively establishes a defense to the claimsas a matter of law" (Bua vPurcell & Ingrao, P.C., 99 AD3d 843, 844-845 [2012]; see Goshen v MutualLife Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Rabos v R&R Bagels &Bakery, Inc., 100 AD3d at 851). Here, the defendant's documentary evidence doesnot utterly refute the factual allegations of the amended complaint. Accordingly, theSupreme Court properly denied that branch of the defendant's motion which waspursuant to CPLR 3211 (a) (1) to dismiss the amended complaint based on documentaryevidence.
Moreover, the Supreme Court properly denied that branch of the defendant's motionwhich was pursuant to CPLR 3211 (a) (5) to dismiss the amended complaint astime-barred. "To dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the groundthat it is barred by the statute of limitations, a defendant bears the initial burden ofestablishing prima facie, that the time in which to sue has expired" (Fleetwood Agency, Inc. v VerdeElec. Corp., 85 AD3d 850, 850 [2011]; see Benjamin v Keyspan Corp., 104 AD3d 891 [2013]).Here, the defendant failed to meet its prima facie burden of establishing that theindemnification causes of action accrued more than six years prior to the commencementof the action (see CPLR 213 [2]; Fleetwood Agency, Inc. v Verde Elec.Corp., 85 AD3d at 850; seegenerally State of New York v Speonk Fuel, Inc., 3 NY3d 720, 723 [2004];McDermott v City of New York, 50 NY2d 211, 217 [1980]; Union Turnpike Assoc., LLC vGetty Realty Corp., 27 AD3d 725, 727 [2006]).
The plaintiff's remaining contentions need not be reached in light of ourdetermination. Balkin, J.P., Hall, Lott and Sgroi, JJ., concur.