Rabos v. R & R Bagels & Bakery, Inc.

• Decision Date: 21 November 2012
• Citation: 100 A.D.3d 849,955 N.Y.S.2d 109,2012 N.Y. Slip Op. 07974
• Court: New York Supreme Court — Appellate Division
• Parties: Vassilia RABOS, appellant, v. R & R BAGELS & BAKERY, INC., et al., defendants, David Rakhminov, et al., respondents.

100 A.D.3d 849
955 N.Y.S.2d 109
2012 N.Y. Slip Op. 07974

Vassilia RABOS, appellant,
v.
R & R BAGELS & BAKERY, INC., et al., defendants,
David Rakhminov, et al., respondents.

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

Nov. 21, 2012.

[955 N.Y.S.2d 110]

Razis & Ross, P.C., Astoria, N.Y. (George J. Razis, Callie Razis, Elena Razis, and Stephen Ross of counsel), for appellant.

Mischel & Horn, P.C., New York, N.Y. (Scott T. Horn and Naomi M. Taub of counsel), for respondents David Rakhminov and Larisa Rakhminov.

Paul Eisenstein, Woodbury, N.Y., for respondents Shirley J.W. Kotcher and Lawrence T. Choy.

Norman Landres, New York, N.Y., for respondent Samir Kohan.

ANITA R. FLORIO, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

[100 A.D.3d 849]In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiff appeals, as limited by her brief, from (1) so much of an order of the Supreme Court, Queens County (McDonald,

[955 N.Y.S.2d 111]

J.), dated July 13, 2011, as granted those branches of the motion of the defendants David Rakhminov and Larisa Rakhminov which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first and second causes of action insofar as asserted against them, and granted the motion of the defendant Samir Kohan pursuant to CPLR 3211(a)(7) to dismiss the fifth cause of action insofar as asserted against him, and (2) so much of an order of the same court dated November 23, 2011, as denied that branch of her motion which was for leave to renew her opposition to those branches of the motion of the defendants David Rakhminov and Larisa Rakhminov which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first and second causes of action insofar as asserted against them, and the motion of the defendant Samir Kohan pursuant to CPLR 3211(a)(7) to dismiss the fifth cause of action insofar as asserted against him, and those branches of her motion which were pursuant to CPLR 3211(e) for leave to replead the second and fifth causes of action.

ORDERED that the order dated July 13, 2011, is modified, on the law, by deleting the provisions thereof granting those branches of the motion of the defendants David Rakhminov and [100 A.D.3d 850]Larisa Rakhminov which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first and second causes of action insofar as asserted against them, and substituting therefor provisions denying those branches of the motion of the defendants David Rakhminov and Larisa Rakhminov; as so modified, the order dated July 13, 2011 is affirmed insofar as appealed from; and it is further,

ORDERED that the appeal from so much of the order dated November 23, 2011, as denied those branches of the plaintiff's motion which were for leave to renew her opposition to those branches of the motion of the defendants David Rakhminov and Larisa Rakhminov which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first and second causes of action insofar as asserted against them is dismissed as academic in light of our determination on the appeal from the order dated July 13, 2011; and it is further,

ORDERED that the order dated November 23, 2011, is modified, on the law and in the exercise of discretion, by deleting the provision thereof denying that branch of the plaintiff's motion which was pursuant to CPLR 3211(e) for leave to replead the second cause of action, and substituting therefor a provision granting that branch of the plaintiff's motion; as so modified the order dated November 23, 2011, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendants David Rakhminov and Larisa Rakhminov, and one bill of costs is awarded to the defendant Samir Kohan, payable by the plaintiff.

The plaintiff commenced this action, inter alia, to recover damages for breach of contract and fraud. The first cause of action alleged breach of contract against, among others, the defendants David Rakhminov and Larisa Rakhminov (hereinafter the Rakhminov defendants). The second cause of action alleged fraud against, among others, the Rakhminov defendants. The fifth cause of action alleged breach of contract against, among others, the defendant Samir Kohan, incorrectly sued herein as Sammy Cohen.

The Rakhminov defendants moved, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the first and second causes of action insofar as asserted against them, and Kohan separately moved pursuant to CPLR 3211(a)(7) to dismiss the fifth cause of action insofar as asserted against him. In an order dated July 13, 2011, the Supreme

[955 N.Y.S.2d 112]

Court, among other things, granted those branches of the Rakhminov defendants' motion which were to dismiss the first and second causes of action...