Makris v. Masjid

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: WILLIAM F. MASTRO
• Citation: Makris v. Masjid, 91 A.D.3d 729, 936 N.Y.S.2d 325, 2012 N.Y. Slip Op. 340 (N.Y. App. Div. 2012)
• Decision Date: 17 January 2012
• Parties: Spiros MAKRIS, et al., respondents, v. DARUS–SALAAM MASJID, NEW YORK, INC., defendant,Tower Insurance Company of New York, appellant(and a third-party action).

2012 N.Y. Slip Op. 00340

91 A.D.3d 729

936 N.Y.S.2d 325

Spiros MAKRIS, et al., respondents,

v.DARUS–SALAAM MASJID, NEW YORK, INC., defendant,Tower Insurance Company of New York, appellant(and a third-party action).

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

Jan. 17, 2012.

Max W. Gershweir, New York, N.Y., for appellant.

Leavitt, Kerson & Duane, Forest Hills, N.Y. (Paul E. Kerson and Isaac Abraham of counsel), for respondents.

WILLIAM F. MASTRO, A.P.J., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for breach of an insurance contract, the defendant Tower Insurance Company of New York appeals from an order of the Supreme Court, Queens County (Markey, J.), entered May 27, 2011, which denied its motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiffs commenced this action against Tower Insurance Company of New York (hereinafter Tower), among others, alleging, inter alia, that Tower had wrongfully denied their claim to recover pursuant to their homeowners insurance policy for damage to their property caused by negligent demolition, construction, building, excavation, and blasting occurring on the property adjacent to the plaintiffs' property. Tower moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against it, arguing that the policy's “faulty workmanship” exclusion applied to the plaintiffs' claim. The Supreme Court denied its motion.

“On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” ( Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 703–704, 864 N.Y.S.2d 70; see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511). Where evidentiary material is submitted and considered on a motion to dismiss a complaint 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 as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate ( see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 274–275, 401 N.Y.S.2d 182, 372 N.E.2d 17; Fishberger v. Voss, 51 A.D.3d 627, 628, 858 N.Y.S.2d 257). “A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law” ( Mendelovitz v. Cohen, 37 A.D.3d 670, 670, 830 N.Y.S.2d 577; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774...