Weill v. E. Sunset Park Realty, LLC

• Decision Date: 12 December 2012
• Citation: 2012 N.Y. Slip Op. 08513,101 A.D.3d 859,955 N.Y.S.2d 402
• Parties: Meyer WEILL, et al., appellants, v. EAST SUNSET PARK REALTY, LLC, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 859
955 N.Y.S.2d 402
2012 N.Y. Slip Op. 08513

Meyer WEILL, et al., appellants,
v.
EAST SUNSET PARK REALTY, LLC, et al., respondents, et al., defendants.

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

Dec. 12, 2012.

Asher Fensterheim, PLLC, Tarrytown, N.Y., for appellants.

Donald G. Davis, New York, N.Y., for respondents.

DANIEL D. ANGIOLILLO, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

[101 A.D.3d 859]In an action, inter alia, to foreclose a mortgage, the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Martin, J.), dated July 5, 2011, as granted that branch of the motion of the defendants East Sunset Park Realty, LLC, and Flushing Preferred Funding Corp. which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, with costs, and that branch of the motion of the defendants East Sunset Park Realty, LLC, and Flushing Preferred Funding Corp. which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them is denied.

[955 N.Y.S.2d 403]

On 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” ( Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). While a court is “permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7)” ( Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153), where the motion is not converted to one for summary judgment, “the criterion is whether the [plaintiff] has a cause of action, not whether he 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 can be said that no significant dispute exists regarding it ... dismissal should not eventuate” [101 A.D.3d 860]( Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17). “[O]n a motion made pursuant to CPLR 3211(a)(7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party” ( Sokol v. Leader, 74 A.D.3d at 1181, 904 N.Y.S.2d 153).

Here, the complaint alleged that the mortgage held by the plaintiffs was superior...