Paino v. Kaieyes Realty, LLC

• Decision Date: 05 March 2014
• Citation: 115 A.D.3d 656,2014 N.Y. Slip Op. 01443,981 N.Y.S.2d 770
• Parties: Delia PAINO, et al., appellants, v. KAIEYES REALTY, LLC, et al., defendants, Home Abstract Corp., et al., respondents.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 656

981 N.Y.S.2d 770

2014 N.Y. Slip Op. 01443

Delia PAINO, et al., appellants,

v. KAIEYES REALTY, LLC, et al., defendants,Home Abstract Corp., et al., respondents.

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

March 5, 2014.

The Behrins Law Firm PLLC, Staten Island, N.Y. (Bruce G. Behrins of counsel), for appellants.

Carlo A. Scissura, P.C. (Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP, Lake Success, N.Y. [Susan Mauro], of counsel), for respondent Carlo Scissura.

Crawford & Bringslid, P.C., Staten Island, N.Y. (Kerri L. Bringslid of counsel), for respondent Dennis Lobaito.

PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and SYLVIA O. HINDS–RADIX, JJ.

In an action, inter alia, to rescind two assignments of a mortgage and to recover damages for fraud and breach of fiduciary duty, the plaintiffs appeal, as limited by their brief and a letter to the Court dated June 14, 2013, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated July 31, 2012, as granted that branch of the renewed motion of the defendant Carlo Scissura which was to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211(a)(7).

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting that branch of the renewed motion of the defendant Carlo Scissura which was to dismiss the second and third causes of action insofar as asserted against him, and substituting therefor provisions denying that branch of the renewed motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiffs.

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), “the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” ( Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153 [internal quotation marks omitted]; see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720;Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635, 389 N.Y.S.2d 314, 357 N.E.2d 970). However, when evidentiary material is adduced in support of a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, the court must determine whether the proponent of the pleading has a cause of action, not whether he or she 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 is can be said that no significant dispute exists regarding it, ... dismissal should not eventuate” ( Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17;see Jannetti v. Whelan, 97 A.D.3d 797, 797–798, 949 N.Y.S.2d 129).

Here, the evidentiary materials submitted by the defendant Carlo Scissura, consisting largely of affidavits and deposition testimony, did not establish, with respect to the...