Mark Hampton, Inc. v. Bergreen
| Decision Date | 07 May 1991 |
| Parties | MARK HAMPTON, INC., Plaintiff, v. Morris H. BERGREEN and Adele G. Bergreen, Defendants-Appellants-Respondents, and Mark Hampton, Additional Defendant on Counterclaims/Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before MILONAS, J.P., and ELLERIN, WALLACH, KASSAL and SMITH, JJ.
Order, Supreme Court, New York County (Carol Arber, J.), entered on January 12, 1990, which granted the motion by the additional defendant on the counterclaims, Mark Hampton ("Hampton"), to dismiss the defendants' first counterclaim as against Hampton, individually, and which denied Hampton's motion to dismiss the second counterclaim as against Hampton individually, unanimously modified, on the law and on the facts, to grant Hampton's motion to dismiss the second counterclaim as against Hampton individually, and otherwise affirmed, without costs.
Although on a motion addressed to the sufficiency of a complaint, the facts pleaded are presumed to be true and accorded every favorable inference (Morone v. Morone, 50 N.Y.2d 481, 484, 429 N.Y.S.2d 592, 413 N.E.2d 1154 (1980)), nevertheless, "allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration" (Roberts v. Pollack, 92 A.D.2d 440, 444, 461 N.Y.S.2d 272 (1983); accord: Gertler v. Goodgold, 107 A.D.2d 481, 485, 487 N.Y.S.2d 565, aff'd, 66 N.Y.2d 946, 498 N.Y.S.2d 779, 489 N.E.2d 748 (1985); Riffat v. Continental Ins. Co., 104 A.D.2d 301, 302, 478 N.Y.S.2d 635 (1984)).
Upon examination of the record, we find that the IAS court did not err in dismissing defendants' first counterclaim for contractual liability in connection with the rendering of design services for their home in Greenwich, Connecticut, against Hampton individually, where the defendants' contractual claim is "flatly contradicted by documentary evidence" consisting of estimates, invoices, checks and correspondence, establishing the existence of an agreement between only the defendants and the corporate plaintiff (Blackgold Realty Corp. v. Milne, 119 A.D.2d 512, 501 N.Y.S.2d 44 (1986),aff'd, 69 N.Y.2d 719, 512 N.Y.S.2d 25, 504 N.E.2d 392 (1987)).
We find, however, that the IAS court erred in refusing to dismiss the defendants' second counterclaim premised upon negligence as against Hampton individually where, by reason of the...
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