| Hampshire Props. v BTA Bldg. & Developing,Inc. |
| 2014 NY Slip Op 07472 [122 AD3d 573] |
| November 5, 2014 |
| Appellate Division, Second Department |
[*1]
| Hampshire Properties, Respondent, v BTABuilding and Developing, Inc., Appellant, and World-Wide Plumbing Supply, Inc.,Respondent, et al., Defendant. |
Traub Lieberman Straus & Shrewsberry, LLP, Hawthorne, N.Y. (Daniel G.Ecker of counsel), for appellant.
Chartwell Law Offices, LLP, New York, N.Y. (Danielle Sullivan Kaminskiand Andrew J. Furman of counsel), for plaintiff-respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant BTABuilding and Developing, Inc., appeals, as limited by its brief, from so much of an orderof the Supreme Court, Kings County (Lewis, J.), dated April 26, 2013, as denied thatbranch of its motion which was pursuant to CPLR 3211 (a) (7) to dismiss the secondcause of action insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs to theplaintiff-respondent.
"On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause ofaction, the complaint must be construed liberally, the factual allegations deemed to betrue, and the nonmoving party must be given the benefit of all favorable inferences" (Carillo v Stony Brook Univ.,119 AD3d 508, 508-509 [2014]; see Leon v Martinez, 84 NY2d 83, 87[1994]). "In assessing a motion under CPLR 3211 (a) (7) . . . a court mayfreely consider affidavits submitted by the plaintiff to remedy any defects in thecomplaint" (Leon v Martinez, 84 NY2d at 88). "The test of the sufficiency of apleading is 'whether it gives sufficient notice of the transaction, occurrences, or series oftransactions or occurrences intended to be proved and whether the requisite elements ofany cause of action known to our law can be discerned from its averments' " (V. Groppa Pools, Inc. vMassello, 106 AD3d 722, 723 [2013] [internal quotation marks omitted],quoting Pace v Perk, 81 AD2d 444, 449 [1981]).
Applying these principles to this case, the amended complaint, as supplemented bythe affidavit of the plaintiff's vice president, adequately alleges all of the essentialelements of a cause of action to recover damages for breach of contract: the existence ofa contract, the plaintiff's performance under the contract, the defendant's breach of thatcontract, and resulting damages (see JP Morgan Chase v J.H. Elec. of N.Y., Inc., 69 AD3d802, 803 [2010]).
Moreover, the affidavit submitted by the appellant "failed to demonstrate that anyfact alleged in the complaint was undisputably not a fact at all" (Bokhour v GTIRetail Holdings, Inc., [*2]94 AD3d 682, 683 [2012];see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).
Accordingly, the Supreme Court properly denied that branch of the appellant'smotion which was pursuant to CPLR 3211 (a) (7) to dismiss the second cause of action,which was to recover damages for breach of contract, insofar as asserted against it.Chambers, J.P., Sgroi, Miller and Barros, JJ., concur.