Karimov v. Brown Harris Stevens Residential Mgmt., LLC

• Decision Date: 21 May 2014
• Parties: Sergey KARIMOV, appellant, v. BROWN HARRIS STEVENS RESIDENTIAL MANAGEMENT, LLC, et al., respondents, et al., defendant.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 910
985 N.Y.S.2d 883
2014 N.Y. Slip Op. 03659

Sergey KARIMOV, appellant,
v.
BROWN HARRIS STEVENS RESIDENTIAL MANAGEMENT, LLC, et al., respondents, et al., defendant.

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

May 21, 2014.

Albert Zafonte, Jr. (Richard Paul Stone, New York, N.Y., of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Joseph A.H. McGovern, John D. Morio, and Paul J. Bottari of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Martin, J.), dated April 10, 2013, which granted the motion of the defendants Brown Harris Stevens Residential Management, LLC, and Fifth Seventy

[985 N.Y.S.2d 884]

Seven, Inc., pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Brown Harris Stevens Residential Management, LLC, and Fifth Seventy Seven, Inc., pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them is denied.

On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( 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;Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511;Sposato v. Paboojian, 110 A.D.3d 979, 974 N.Y.S.2d 251;Constructamax, Inc. v Dodge Chamberlin Luzine Weber, Assoc. Architects, LLP, 109 A.D.3d 574, 971 N.Y.S.2d 48). A court “may consider affidavits submitted by the plaintiff to remedy any defects in the complaint and, upon considering such affidavits, the facts alleged therein must also be assumed to be true” ( Pasquaretto v. Long Is. Univ., 106 A.D.3d 794, 795, 964 N.Y.S.2d 599;see Freeman v. City of New York, 111 A.D.3d 780, 975 N.Y.S.2d 141). Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff...