Born to Build LLC v. 1141 Realty LLC

• Decision Date: 02 April 2013
• Citation: 963 N.Y.S.2d 29,2013 N.Y. Slip Op. 02193,105 A.D.3d 425
• Parties: BORN TO BUILD LLC, Petitioner–Respondent, v. 1141 REALTY LLC, Respondent–Appellant, Kuang Chih Li, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 425

963 N.Y.S.2d 29

2013 N.Y. Slip Op. 02193

BORN TO BUILD LLC, Petitioner–Respondent,

v. 1141 REALTY LLC, Respondent–Appellant,Kuang Chih Li, etc., et al., Respondents.

Supreme Court, Appellate Division, First Department, New York.

April 2, 2013.

Ronald Francis, New York, for appellant.

Kazlow & Kazlow, New York (Stuart L. Sanders of counsel), for respondent.

FRIEDMAN, J.P., SWEENY, RENWICK, RICHTER, ROMÁN, JJ.

Order, Supreme Court, New York County (Lucy Billings, J.), entered February 9, 2012, which, to the extent appealed from, denied respondent 1141 Realty LLC's cross motion to dismiss Born to Build's petition based on the documentary evidence, unanimously reversed, on the law, without costs, the cross motion granted, and the petition dismissed. The Clerk is directed to enter judgment accordingly.

Petitioner failed to raise an issue of fact as to the authenticity of the operating agreement, and the motion to dismiss should have been granted. The affidavits at issue here do little more than assert that the affiants were told by Ibrahim Saleh, a former manager of 1141 Realty, that he was actually an owner, and the petition makes assertions premised only upon information and belief. Both the affidavits and the assertions are contradicted by the operating agreement ( Gould v. McBride, 36 A.D.2d 706, 706–707, 319 N.Y.S.2d 125 [1st Dept. 1971], affd.29 N.Y.2d 768, 326 N.Y.S.2d 565, 276 N.E.2d 626 [1971] [“Where, as here, the cause of action is based on documentary evidence, the authenticity of which is not disputed, a general denial, without more, will not suffice to raise an issue of fact”]; see also First Interstate Credit Alliance v. Sokol, 179 A.D.2d 583, 584, 579 N.Y.S.2d 653 [1st Dept. 1992] [where there were “affidavits ... from a corporate...