Nerey v. Greenpoint Mortg. Funding, Inc.

• Decision Date: 30 April 2014
• Citation: Nerey v. Greenpoint Mortg. Funding, Inc., 2014 NY Slip Op 2910, 116 A.D.3d 1015, 985 N.Y.S.2d 252 (N.Y. App. Div. 2014)
• Parties: Ramon NEREY, et al., appellants-respondents, v. GREENPOINT MORTGAGE FUNDING, INC., et al., defendants, Steven Weiss, respondent-appellant.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 1015

985 N.Y.S.2d 252

2014 N.Y. Slip Op. 02910

Ramon NEREY, et al., appellants-respondents,

v. GREENPOINT MORTGAGE FUNDING, INC., et al., defendants,Steven Weiss, respondent-appellant.

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

April 30, 2014.

Anadel Canale P.C., Melville, N.Y., for appellants-respondents.

Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C., Yonkers, N.Y. (Micheli I. Perez of counsel), for respondent-appellant.

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and JOSEPH J. MALTESE, JJ.

In an action, inter alia, to recover damages for fraud, the plaintiffs appeal from so much of an order of the Supreme Court, Queens County (Grays, J.), entered October 5, 2012, as granted that branch of the motion of the defendants Steven Weiss and Mortgage Mall, Inc., which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of action of the amended complaint insofar as asserted against the defendant Mortgage Mall, Inc., and the defendant Steven Weiss cross-appeals from stated portions of the same order.

ORDERED that the cross appeal is dismissed as abandoned; and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, and that branch of the motion of the defendants Steven Weiss and Mortgage Mall, Inc., which was to dismiss the third cause of action of the amended complaint insofar as asserted against the defendant Mortgage Mall, Inc., is denied; and it is further, ORDERED that one bill of costs is awarded to the plaintiffs.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511;Minovici v. Belkin BV, 109 A.D.3d 520, 521, 971 N.Y.S.2d 103;Rabos v. R & R Bagels & Bakery, Inc., 100 A.D.3d 849, 851, 955 N.Y.S.2d 109).

Here, the Supreme Court improperly granted that branch of the motion of the defendants Steven Weiss and Mortgage Mall, Inc. (hereinafter Mortgage Mall), which was to dismiss the third cause of action insofar as asserted against Mortgage Mall, upon concluding that the allegations set forth in that cause of action did not make reference to that defendant. The third cause of action incorporates all...