CPLR R. 3211
(a)(1) defense is founded upon documentary evidence
(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds
(a)(7) pleading fails to state a cause of action
(8) the court has not jurisdiction of the person of the defendant
CPLR R. 3016 Particularity in specific actions
Freud v St. Agnes Cathedral School, 2009 NY Slip Op 05943 (App. Div., 2nd, 2009)
It is undisputed that, on August 27, 2007, the plaintiff's process
server visited the defendant's school and delivered the summons and
complaint in this action to Patricia Wren, who was employed by the
defendant. The defendant moved to dismiss the complaint on the ground
that service of process was invalid since Wren was only a secretary and
not authorized to receive service of process on behalf of the
defendant. At the hearing to determine the validity of service of
process upon the defendant, the process server testified that she
approached Wren, whom she believed to be a secretary, identified the
summons and complaint, and asked Wren if she was authorized to accept
service of the papers. According to the process server, Wren replied
that she was so authorized. Wren testified at the hearing that she was
employed by the defendant as a clerk, but denied that she ever told the
process server that she was authorized to accept service of process on
behalf of the defendant. After the hearing, the court denied the motion
to dismiss.
Ordinarily, the hearing court's assessment of a witness's credibility is entitled to substantial deference (see Ortiz v Jamwant, 305 AD2d 477; McGuirk v Mugs Pub, 250 AD2d 824, 825; Carlin v Crum & Forster Ins. Co., 170 AD2d 251). Under these circumstances, we perceive no reason to disturb its determination on appeal (see Fashion Page v Zurich Ins. Co., 50 NY2d 265).
Horbul v Mercury Ins. Group, 2009 NY Slip Op 05947 (App. Div., 2nd, 2009)
The plaintiff alleged in the complaint that the defendants committed
slander per se when they reported to the police that the plaintiff had
filed a fraudulent claim with them for no-fault medical benefits for
his son. However, the complaint failed to comply with CPLR 3016(a),
which requires that a complaint sounding in defamation "set forth the
particular words complained of'" (Simpson v Cook Pony Farm Real Estate, Inc., 12 AD3d 496, 497, quoting CPLR 3016[a]; see Fusco v Fusco, 36 AD3d 589). Compliance with CPLR 3016(a) is strictly enforced (see Abe's Rooms, Inc. v Space Hunters, Inc., 38 AD3d 690).
Accordingly, that branch of the defendants' motion which was pursuant
to CPLR 3211(a)(7) to dismiss the complaint for failure to state a
cause of action should have been granted.
Pinkava v Yurkiw, 2009 NY Slip Op 05953 (App. Div., 2nd, 2009)
The Supreme Court denied the defendants' motion, in effect, to
dismiss the first cause of action pursuant to CPLR 3211(a)(7), for
summary judgment dismissing the second through twelfth causes of action
on the ground that they were barred by the statute of frauds, and for
summary judgment on the counterclaims. We affirm.The statue of frauds prohibits the conveyance of real property without a written contract (see
General Obligations Law § 5-703[1]). While the statute of frauds
empowers courts of equity to compel specific performance of agreements
in cases of part performance (see General Obligations Law § 5-703[4]), the claimed partial performance "must be unequivocally referable to the agreement" (Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 235; Luft v Luft, 52 AD3d 479,
481). It is not sufficient that the oral agreement gives significance
to the plaintiff's actions. Rather, the actions alone must be "
unintelligible or at least extraordinary,' [and] explainable only with
reference to the oral agreement" (Anostario v Vicinanzo, 59 NY2d 662, 664, quoting Burns v McCormick, 233 NY 230, 232; see Adelman v Rackis,
212 AD2d 559, 561). Significantly, the doctrine of part performance "is
based on principles of equity, in particular, recognition of the fact
that the purpose of the Statute of Frauds is to prevent frauds, not to
enable a party to perpetrate a fraud by using the statute as a sword
rather than a shield" (Nicolaides v Nicolaides, 173 AD2d 448, 449-450, see Scutti Enters. v Wackerman Guchone Custom Bldrs., 153 AD2d 83, 87).
Here, in response to the defendants' prima facie showing that
enforcement of the alleged oral agreement was barred by the statute of
frauds (see generally Alvarez v Prospect Hosp., 68 NY2d 320,
324), the plaintiffs raised triable issues of fact as to whether they
had partially performed in a manner unequivocally referable to its
terms. The plaintiff Steven G. Pinkava submitted an affidavit
indicating that he paid the Yurkiws a total of $51,000, assumed sole
management responsibility of the property, ordered a title search, and
tendered a bank check for the balance of the purchase price. The
plaintiffs also submitted a handwritten document prepared by Anna's
late husband referencing "Steve" and the subject property, which showed
a decreasing balance beginning with $150,000 in January 1998. Thus,
there is evidence from which a trier of fact might conclude that the
plaintiffs' conduct was extraordinary and explainable only by a
reference to the oral contract (see Anostario v Vicinanzo, 59
NY2d at 664). This evidence raises a triable issue of fact as to part
performance which precludes an award of summary judgment dismissing the
second through twelfth causes of action on the ground that they were
barred by the statute of frauds (see Panetta v Kelly, 17 AD3d 163; Adelman v Rackis, 212 AD2d 559; Spirt v Spirt, 209 AD2d 688).
Moreover, accepting the plaintiffs' factual allegations as true,
and according them the benefit of every favorable inference, as we must
on a motion to dismiss for failure to state a cause of action (see Leon v Martinez,
84 NY2d 83, 87-88), the plaintiffs' allegations of payments to the
Yurkiws of $51,000 and their contribution of time managing the property
was sufficient to establish the transfer in reliance and unjust
enrichment elements of a cause of action for a constructive trust (see Salatino v Salatino, 13 AD3d 512; Matter of Bayside Controls, Inc., 295 AD2d 343, 346; Gottlieb v Gottlieb, 166 AD2d 413, 414).
Reichenbaum v Cilmi, 2009 NY Slip Op 05954 (App. Div., 2nd, 2009)
Affording the complaint a liberal construction, accepting all facts as
alleged in the amended complaint to be true, and according the
plaintiffs the benefit of every favorable inference as required on a
motion to dismiss pursuant to CPLR 3211(a)(7), the amended complaint
fails to state a cause of action (see Leon v Martinez, 84 NY2d 83; see also Fishberger v Voss, 51 AD3d [*2]627).
The factual allegations in support of the cause of action to recover
damages for breach of fiduciary duty are duplicative of the allegations
in support of the cause of action to recover damages for legal
malpractice, as both causes of action arise from the same facts and
allege the same damages (see Kvetnaya v Tylo, 49 AD3d 608; Daniels v Lebit, 299
AD2d 310). The factual allegations in support of the cause of action to
recover damages for legal malpractice do not establish the necessary
element of causation that "but for" the defendants' alleged acts or
omissions, the plaintiffs would not have incurred any damages (see Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721).
The factual allegations in support of the cause of action to recover
damages for fraud fail to meet the heightened pleading requirement of
CPLR 3016(b) (see Kline v Taukpoint Realty Corp., 302 AD2d 433)
and, in any event, the "mere failure to disclose malpractice does not
give rise to a cause of action alleging fraud or deceit separate from
the underlying malpractice cause of action" (Ferdinand v Crecca & Blair, 5 AD3d 538, 539).
Schwarz Supply Source v Redi Bag USA, LLC, 2009 NY Slip Op 05956 (App. Div., 2nd, 2009)
A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint based on
documentary evidence "may be appropriately granted only where the
documentary evidence utterly refutes plaintiff's factual allegations,
conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Leon v Martinez, 84 NY2d 83, 88; Long v Allen AME Transp. Corp., 43 AD3d 1114; Sheridan v Town of Orangetown, 21 AD3d 365; Scadura v Robillard, 256
AD2d 567). Here, the causes of action, inter alia, to recover damages
for breach of contract were not definitively refuted by any documentary
evidence presented by the defendant. Therefore, that branch of the
defendant's motion which was to dismiss the complaint pursuant to CPLR
3211(a)(1) should have been denied.
Singh v Kur, 2009 NY Slip Op 05957 (App. Div., 2nd, 2009)
As to the plaintiff's cause of action alleging breach of contract, the
defendants met their prima facie burden establishing their entitlement
to judgment as a matter of law by offering admissible evidence that
they never signed the proposed contract with the plaintiff and never
received any money from him (see Tikvah Realty, LLC v Schwartz, 43 AD3d 909).
Since the contract was not signed by the defendants, the parties to be
charged with its enforcement, it was void as against them pursuant to
the statute of frauds (see GOL 5-701[a][1]; Vista Props., LLC v Rockland Ear, Nose & Throat Assoc. LLC, 60 AD3d 846).
In opposition, the plaintiff failed to raise a triable issue of fact as
to whether there was an enforceable oral contract under the doctrine of
part performance (see Anostario v Vicinanzo, 59 NY2d 662, 664).
The plaintiff submitted an affidavit stating that he delivered the sum
of $300,000 in cash to the individual defendants' husbands in a brown
paper bag. However, the alleged delivery of this money was not
"unequivocally referable" [*2]to the alleged contract, such as to constitute part performance (see 745 Nostrand Retail Ltd. v 745 Jeffco Corp., 50 AD3d 768, 769; Tikvah Realty, LLC v Schwartz, 43 AD3d 909).
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