Roth v. Goldman

• Decision Date: 19 October 1998
• Citation: Roth v. Goldman, 679 N.Y.S.2d 92, 254 A.D.2d 405 (N.Y. App. Div. 1998)
• Parties: 1998 N.Y. Slip Op. 8967 Stanley ROTH, Respondent, v. Stuart GOLDMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 92

679 N.Y.S.2d 92

1998 N.Y. Slip Op. 8967

Stanley ROTH, Respondent, v. Stuart GOLDMAN, Appellant.

Supreme Court, Appellate Division Second Department.

Oct. 19, 1998.

Squadron, Ellenoff, Plesent & Sheinfeld, LLP, New York, N.Y. (Judith R. Cohen of counsel), for appellant.

Alfred Schnall, New York, N.Y., for respondent.

ROSENBLATT, J.P., MILLER, GOLDSTEIN and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from so much of an order of the Supreme Court, Nassau County (DiNoto, J.), entered June 27, 1997, as upon, in effect, converting the defendant's motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint into a motion for summary judgment, denied the motion.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the plaintiff's complaint. In the order appealed from, Justice DiNoto stated, incorrectly, that the defendant's motion was for summary judgment. Justice DiNoto also inconsistently, but correctly, stated that the defendant's motion was brought pursuant to CPLR 3211(a)(1) and (7). The court then went on to discuss the standards governing a motion for summary judgment and, without addressing any of the facts of this case, or specifically converting the defendant's motion into one for summary judgment, denied the defendant's motion. Insofar as the court in effect converted the defendant's motion into one for summary judgment, it erred, as he failed to first give notice to the parties (see, Matter of Ward v. Bennett, 214 A.D.2d 741, 742-743, 625 N.Y.S.2d 609; Sopesis Constr. v. Solomon, 199 A.D.2d 491, 605 N.Y.S.2d 402). However, since we find that the defendant's motion to dismiss should have been denied, we affirm the order insofar as appealed from.

"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We 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 * * * Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law * * * In assessing a motion under CPLR 3211(a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy...