Granada Condo. III Ass'n v. Palomino

• Decision Date: 23 November 2010
• Citation: Granada Condo. III Ass'n v. Palomino, 913 N.Y.S.2d 668, 78 A.D.3d 996 (N.Y. App. Div. 2010)
• Parties: GRANADA CONDOMINIUM III ASSOCIATION, appellant, v. Karim PALOMINO, respondent.
• Court: New York Supreme Court — Appellate Division

913 N.Y.S.2d 668

78 A.D.3d 996

GRANADA CONDOMINIUM III ASSOCIATION, appellant,

v.Karim PALOMINO, respondent.

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

Nov. 23, 2010.

Adam Seiden, Mount Vernon, N.Y., for appellant.

Karen Copeland, New York, N.Y., for respondent.

MARK C. DILLON, J.P., ANITA R. FLORIO, JOHN M. LEVENTHAL, and CHERYL E. CHAMBERS, JJ.

In an action, inter alia, for a permanent injunction, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated November 23, 2009, as granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint is denied.

The plaintiff commenced this action against the defendant, a unit owner in the plaintiff's condominium complex, for violating a condominium rule prohibiting unit owners from harboring pets that regularly frequent the outside of the unit. The Supreme Court granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint. We reverse.

On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff's allegations are accepted as true and accorded the benefit of every possible favorable inference ( see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; Reiver v. Burkhart Wexler & Hirschberg, LLP, 73 A.D.3d 1149, 901 N.Y.S.2d 690). A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the defendant utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law ( see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; First Keystone Consultants, Inc. v. DDR Constr. Servs., 74 A.D.3d 1135, 904 N.Y.S.2d 113). In order for evidence to qualify as "documentary,"it must be unambiguous, authentic, and undeniable ( Fontanetta v. John Doe 1, 73 A.D.3d 78, 84-86, 898 N.Y.S.2d 569). Neither affidavits, deposition testimony, nor letters are considered "documentary evidence" within the intendment of CPLR 3211(a)(1) ( see Suchmacher v. Manana Grocery, 73 A.D.3d 1017, 900 N.Y.S.2d 686; Fontanetta v. John Doe 1, 73 A.D.3d at 85-87, 898 N.Y.S.2d 569).

Here, the material submitted by the defendant in support of her motion, namely, her own affidavit and a letter sent to her from the plaintiff's attorney, did not constitute "documentary evidence" within the meaning of CPLR 3211(a)(1). Even if it had constituted documentary evidence, it failed to utterly refute the plaintiff's allegations and conclusively establish a defense as a matter of law ( see Reiver v. Burkhart Wexler & Hirschberg, LLP, 73 A.D.3d 1149, 901 N.Y.S.2d 690; Fontanetta v. John Doe 1, 73 A.D.3d 78, 898 N.Y.S.2d 569).

The Supreme Court erred in determining that the Westchester County Pet. Law (Laws of Westchester County § 695.11[1] ) applies to condominiums and their unit owners. In Board of Mgrs. v. Lamontanero, 206 A.D.2d 340, 616 N.Y.S.2d 744, this Court interpreted the New York City Pet. Law ( see Administrative Code of City of N.Y. § 27-2009.1). We determined that because the lawmakers there specifically excluded buildings owned and managed by the New York City Housing...