Orlando v. N.Y. Homes By J & J Corp.

• Decision Date: 13 May 2015
• Docket Number: 2014-05354
• Parties: Gary ORLANDO, respondent, v. NEW YORK HOMES BY J AND J CORP., et al., defendants, Joseph DeLuca, appellant.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 784
11 N.Y.S.3d 76
2015 N.Y. Slip Op. 04104

Gary ORLANDO, respondent
v.
NEW YORK HOMES BY J AND J CORP., et al., defendants
Joseph DeLuca, appellant.

2014-05354

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

May 13, 2015.

11 N.Y.S.3d 77

McMahon, Martine & Gallagher, LLP, Brooklyn, N.Y. (Roderick J. Coyne of counsel), for appellant.

Jacoby & Jacoby, Medford, N.Y. (Brian M. Martin of counsel), for respondent.

Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), for defendant Carol Michaels Realty, Inc.

PETER B. SKELOS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.

Opinion

128 A.D.3d 784

In an action to recover damages for personal injuries, the defendant Joseph DeLuca appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated March 4, 2014, as denied that branch of his motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him, with leave to renew upon the completion of disclosure.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondent.

When a defendant submits evidence in support of a motion to dismiss pursuant to CPLR 3211(a)(7), and the motion has

128 A.D.3d 785

not been converted into one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; Paino v. Kaieyes Realty, LLC, 115 A.D.3d 656, 656–657, 981 N.Y.S.2d 770 ). “[U]nless it has been shown that a material fact as claimed by the pleader 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” (Guggenheimer v....