Ferran v. Belawa

• Decision Date: 31 July 1997
• Citation: 660 N.Y.S.2d 488,241 A.D.2d 841
• Parties: , 1997 N.Y. Slip Op. 6955 Nadia FERRAN et al., Appellants, v. Stanley J. BELAWA et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 488

660 N.Y.S.2d 488

241 A.D.2d 841, 1997 N.Y. Slip Op. 6955

Nadia FERRAN et al., Appellants, v. Stanley J. BELAWA et al., Respondents.

Supreme Court, Appellate Division Third Department.

July 31, 1997.

Nadia Ferran, Albany, in pro. per.

Mark Ferran, Albany, in pro. per.

Kingsley & Towne P.C. (John P. Kingsley, of counsel), Albany, for David J. Valenti, respondent.

Dreyer & Boyajian LLP (Daniel J. Stewart, of counsel), Albany, for Town of Nassau and others, respondents.

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and PETERS, JJ.

CREW, Justice.

Appeals (1) from an order of the Supreme Court (Canfield, J.), entered September 8, 1995 in Rensselaer County, which, inter alia, granted defendant David J. Valenti's motion to dismiss the complaint against him for failure to state a cause of action, and (2) from an order of said court, entered April 4, 1996 in Rensselaer County, which, inter alia, partially granted a motion by defendants Town of Nassau, Town Board of Nassau and Joseph Meizenger to dismiss the complaint against them for failure to state a cause of action.

This action arises out of plaintiffs' alleged ownership of certain real property located in the Town of Nassau, Rensselaer County. Insofar as is relevant to this appeal, plaintiffs commenced this action against defendants Town of Nassau, Town Board of Nassau and Joseph Meizenger, the latter of whom appears to be the Town's Highway Superintendent, and defendant David J. Valenti, individually and doing business as Valenti Excavating and Trucking, alleging, inter alia, that defendants trespassed upon plaintiffs' property and caused damage thereto.

Following a change in venue from Albany County to Rensselaer County, Valenti moved to dismiss the complaint pursuant to CPLR 3211 contending, inter alia, that plaintiffs' complaint failed to state a cause of action, and plaintiffs sought permission to serve an amended complaint. Thereafter, the Town, the Town Board and Meizenger (hereinafter collectively referred to as the Town defendants) also moved to dismiss the complaint pursuant to CPLR 3211. By order entered September 8, 1995, Supreme Court granted Valenti's motion to dismiss plaintiffs' complaint in its entirety and denied plaintiffs' request for permission to serve an amended complaint. Subsequently, by order entered April 4, 1996, Supreme Court granted the Town defendants' motion to dismiss the complaint with the exception of plaintiffs' tenth cause of action for slander and, further, denied plaintiffs' application for an extension of time to oppose said motion. These appeals by plaintiffs ensued.

Turning first to Valenti's motion to dismiss, a review of the complaint reveals--and plaintiffs concede--that plaintiffs' first, second third, fourth, seventh and eighth causes of action must be dismissed as they do not allege any wrongdoing on the part of Valenti. We also agree with Supreme Court that plaintiffs' ninth, tenth, twelfth and thirteenth causes of action fail to set forth a cognizable claim with respect to Valenti. ¹ Thus, with respect to Valenti, we are left to consider the propriety of Supreme Court's dismissal of plaintiffs' fifth, sixth, and eleventh causes of action.

In granting Valenti's motion to dismiss plaintiffs' fifth, sixth and eleventh causes of action, Supreme Court noted that there was a dispute as to the true owner of the property in question and dismissed said causes of action upon that basis. This was error. It is well settled that "[o]n a motion to dismiss pursuant to CPLR 3211(a)(7), we are to afford the pleading a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable theory" (Sand v. Chapin, 238 A.D.2d 862, 863, 656 N.Y.S.2d 700, 701). Although we need not accept as true legal conclusions or factual allegations that "are either inherently incredible or flatly contradicted by documentary evidence" (Quail Ridge Assocs. v. Chemical Bank, 162 A.D.2d 917, 918, 558 N.Y.S.2d 655, lv. dismissed 76 N.Y.2d 936, 563 N.Y.S.2d 64, 564 N.E.2d 674), the mere fact that the allegations are informally or imperfectly stated does not provide a basis for dismissal (see, Korenman v. Zaydelman, 237 A.D.2d 711, 713, 654 N.Y.S.2d 452, 453).

Here, plaintiffs have alleged--albeit inartfully and somewhat confusingly--that they are the owners of the property in question. Although a review of the record indeed reveals that there is some question as to the validity of plaintiffs' claim in this regard, their allegations are not "inherently incredible", nor have such allegations been "flatly contradicted by documentary evidence" (Quail Ridge Assocs. v. Chemical Bank, supra, at 918, 558 N.Y.S.2d 655). Thus, accepting as true plaintiffs' assertions that the lands upon which Valenti is alleged to have, inter alia, conducted certain excavation work and destroyed survey markers is indeed owned by plaintiffs, such allegations are sufficient to state a cause of action for trespass. Accordingly, Supreme Court erred in dismissing plaintiffs' fifth, sixth and eleventh causes of action...