Rochdale Village, Inc. v. Zimmerman, 2002-11522.

Decision Date29 December 2003
Docket Number2002-11522.
Citation2 A.D.3d 827,2003 NY Slip Op 19983,769 N.Y.S.2d 386
PartiesROCHDALE VILLAGE, INC., Respondent, v. HOWARD L. ZIMMERMAN et al., Appellants.
CourtNew York Supreme Court — Appellate Division

Ordered that the order is affirmed, with costs.

"[O]n a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must determine whether, accepting as true the factual averments of the complaint and according the plaintiff the benefits of all favorable inferences which may be drawn therefrom, the plaintiff can succeed upon any reasonable view of the facts stated" (Board of Educ. of City School Dist. of City of New Rochelle v County of Westchester, 282 AD2d 561, 562 [2001]). Where evidence is submitted by the movant in support of the CPLR 3211 (a) (7) motion, the court must determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one (see Columbo v Chase Manhattan Automotive Fin. Corp., 297 AD2d 327 [2002]).

Applying these principles to the case at bar, the Supreme Court properly denied that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7).

The Supreme Court also properly denied that branch of the defendants' motion which was for partial summary judgment limiting the plaintiff's recovery, if any, to the fees paid by the plaintiff to the defendants under their contract, as the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law on this issue (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

The defendants' remaining contention is without merit.

Florio, J.P., Smith, Luciano and Rivera, JJ., concur.

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  • 1710 Owners Corp. v. Sussman
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    ... ... action (See Rochdale Village Inc., v Zimmerman, 2 ... A.D.3d 827 [AD 2nd Dept ... ...
  • Malul v. Azulay
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    ...Ginzburg, 43 N.Y.2d 268 [1977];Lupski v. County of Nassau, 32 A.D.3d 997, 822 N.Y.S.2d 112 [2d Dept.2006]; Rochdale Vil. v. Zimmerman, 2 A.D.3d 827, 769 N.Y.S.2d 386 [2d Dept.2003]; Bovino v. Village of Wappingers Falls, 215 A.D.2d 619 [1995] ). The facts pleaded are to be presumed to be tr......
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    ...614 N.Y.S.2d 972, 638 N.E.2d 511; Morone v. Morone, 50 N.Y.2d 481, 484, 429 N.Y.S.2d 592, 413 N.E.2d 1154; Rochdale Vil. v. Zimmerman, 2 A.D.3d 827, 769 N.Y.S.2d386). "[T]he criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one" (Gu......
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