Rochdale Village, Inc. v. Zimmerman

• Decision Date: 29 December 2003
• Docket Number: 2002-11522.
• Citation: 2 A.D.3d 827,2003 NY Slip Op 19983,769 N.Y.S.2d 386
• Parties: ROCHDALE VILLAGE, INC., Respondent, v. HOWARD L. ZIMMERMAN et al., Appellants.
• Court: New York Supreme Court — Appellate Division

2 A.D.3d 827

769 N.Y.S.2d 386

2003 NY Slip Op 19983

ROCHDALE VILLAGE, INC., Respondent, v.HOWARD L. ZIMMERMAN et al., Appellants.

2002-11522.

Appellate Division of the Supreme Court of the State of New York, Second Department.

December 29, 2003.

In an action, inter alia, to recover damages for architectural malpractice, the defendants appeal from an order of the Supreme Court, Queens County (Dollard, J.), dated October 31, 2002, which denied their motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint, or alternatively, for summary judgment dismissing the complaint or for partial summary judgment limiting the plaintiff's recovery, if any, to the fees it paid under the contract.

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 (seeColumbo v Chase Manhattan Automotive Fin. Corp.,297 AD2d 327[2002]).

Applying these principles to the case at bar, the Supreme Court properly denied that...