Higuera v. True N. Land Servs., LLC

• Decision Date: 10 March 2021
• Docket Number: Index No.: 518717/2019
• Citation: 2021 NY Slip Op 30769 (U)
• Parties: MAGDA HIGUERA, Plaintiff, v. TRUE NORTH LAND SERVICES, LLC, and 256 MENAHAN ST., LLC, Defendants
• Court: New York Supreme Court

2021 NY Slip Op 30769(U)

MAGDA HIGUERA, Plaintiff, v. TRUE NORTH LAND SERVICES, LLC, and 256 MENAHAN ST., LLC, Defendants

Index No.: 518717/2019

New York Supreme Court

RECEIVED: March 11, 2021

March 10, 2021

NYSCEF DOC. NO. 84

At an IAS Term, Part 66 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 10^th day of MARCH, 2021

PRESENT: HON. RICHARD VELASQUEZ, Justice.

Decision and Order

The following papers NYSCEF Doc #'s 1 to 19 read on this motion:

Papers

NYSCEF DOC NO.'s

Notice of Motion/Order to Show Cause

Affidavits (Affirmations) Annexed

23-50; 63, 51-62

Opposing Affidavits (Affirmations)

51-62; 79

Reply Affidavits (Affirmations)

81-83

After having heard Oral Argument on JANUARY 6, 2021 and upon review of the foregoing submissions herein the court finds as follows:

Plaintiff, MAGDA HIGUERA, moves for an order: (1) granting Plaintiff's pre-reply to counterclaims motion to dismiss Defendant, TRUE NOTH LAND SERVICES, LLC's (TRUE NORTH) First, Second Third and Fourth Counterclaims on the grounds that they have been rendered moot by the September 2, 2020 decision of this honorable Court; (2) granting Plaintiff's pre-reply to counterclaims motion to dismiss the Defendant, TRUE NORTH's Fourth Counterclaim, pursuant to CPLR §3211(a)(6) and (7), as well as CPLR §3212(b), on the grounds that said counterclaim of indemnification for legal fees in unavailable because there is neither a contractual basis, nor any common law entitlement to this recovery. (MS#2) Defendant opposes the same and cross-moves for an order, pursuant to 22 NYCRR 130-1.1, granting True North's cross-motion for reimbursement of its legal fees incurred in connection with this litigation. (MS#3).

First the court shall address plaintiff's request to dismiss the defendant's 1^st, 2^nd, 3^rd, and 4^th counterclaims. Pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Morone v. Morone, 50 N.Y.2d 481, 484, 429 N.Y.S.2d 592, 413 N.E.2d 1154; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970). In assessing a motion under CPLR 3211(a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint (Rovello v. Orofino Realty Co., 40 N.Y.2d at 635, 389 N.Y.S.2d 314, 357 N.E.2d 970) and "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17; Rovello v. Orofino Realty Co., 40 N.Y.2d at 636, 389 N.Y.S.2d 314, 357 N.E.2d 970). Further, the court may consider any factual submissions made in opposition to a motion to dismiss a pleading in order to remedy pleading defects (see Quinones v. Schaap, 91 A.D.3d 739, 740, 937 N.Y.S.2d 262; Daub v. Future Tech Enter., Inc., 65 A.D.3d at 1005, 885 N.Y.S.2d 115). Minovici v. Belkin BV, 109 A.D.3d 520, 521, 971 N.Y.S.2d 103, 106 (2013) "[B]are legal conclusions and factual claims which are flatly contradicted by the evidence are notpresumed to be true on such a motion" (Palazzolo v. Herrick, Feinstein, LLP, 298 A.D.2d 372, 751 N.Y.S.2d 401). "Whether the pleadings will later survive a motion for summary judgment, or whether the party will ultimately be able to prove its claims ... plays no part in the determination of a pre-discovery 3211[a][7] motion to dismiss" (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38; see EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 19). When a party, moves for a motion to dismiss, it is asking the court to make that determination instead. "Courts are not infallible. In undertaking such a task, a court should be mindful to prevent errors which could result in the dismissal of a worthy claim, even if it means risking an unworthy claim proceeding to trial. In other words, it must err on the side of the plaintiff. Toward this aim, many rules and standards have evolved for the court to follow."Poolt v. Brooks, 38 Misc3d 1216(A), 967 NYS2d 869 (Sup. Ct. 2013).

In the present case, affording the answer and counterclaims a liberal construction, accepting the facts as alleged therein as true, and granting defendants the benefit of every possible inference, it is the opinion of this Court that the answer and counterclaims sufficiently state causes of action for defendants 1 ^st, 2^nd, 3^rd, and 4^th counterclaims at this pre-discovery stage of the proceedings (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, supra at 38). Moreover, in the case at bar defendants answer with counter-claims constitutes evidence. How credible that evidence is irrelevant at this juncture. Defendant must still make out a prima facie case against them at trial through competent evidence, but when it comes to "he said, she said," merely raises a question of credibility for the jury to decide (see Communications & Entertainment Corp. v. Hibbard Brown & Co., Inc., supra, 202 A.D.2d 191, 608N.Y.S.2d 214). As such, the defendants have plead facts sufficient to state a cause of action and...