Pre answer (we are unwilling) and renew
Rowe v Nycpd, 2011 NY Slip Op 05477 (2nd Dept. 2011)
However, after affording the plaintiff's allegations every possible favorable inference, we are unwilling to determine at this pre-answer stage of the litigation that the plaintiff has failed to assert claims alleging violations of federal civil and constitutional rights under color of state law, especially where, as here, the pleading is not being challenged for its sufficiency pursuant to CPLR 3211 (see 42 USC § 1983; see generally Matter of Upstate Land & Props., LLC v Town of Bethel, 74 AD3d 1450; Sonne v Board of Trustees of Vil. of Suffern, 67 AD3d 192).
Accordingly, the Supreme Court's dismissal of the complaint based on the plaintiff's failure to timely serve a notice of claim was proper except to the extent it dismissed the plaintiff's cause of action to recover damages for violation of his federal civil and constitutional rights under color of state law (see Dorce v United Rentals N. Am., Inc., 78 AD3d 1110; Pendleton v City of New York, 44 AD3d 733).
The Supreme Court also properly denied that branch of the plaintiff's motion which was for leave to renew his opposition to the defendants' motion to dismiss the complaint. "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Elder v Elder, 21 AD3d 1055, 1055; Matter of Allstate Ins. Co. v Liberty Mut. Ins., 58 AD3d 727). A motion for leave to renew must be based upon new facts, not offered on the original application, "that would change the prior determination" (CPLR 2221[e][2]; see Matter of Korman v Bellmore Pub. Schools, 62 AD3d 882, 884). The new or additional facts must have either not been known to the party seeking renewal (see Matter of Shapiro v State of New York, 259 AD2d 753) or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion (see Cole-Hatchard v Grand Union, 270 AD2d 447). However, in either instance, a "reasonable justification" for the failure to present such facts on the original motion must be presented (CPLR 2221[e][3]; see Matter of Korman v Bellmore Pub. Schools, 62 AD3d at 884). What constitutes a "reasonable justification" is within the Supreme Court's discretion (Heaven v McGowan, 40 AD3d 583). Here, the Supreme Court did not improvidently exercise its discretion in denying leave to renew. Where, as here, the "new evidence" consists of documents which the plaintiff knew existed, and were in fact in his own possession at the time the initial motion was made, no reasonable justification exists for the plaintiff's failure to exercise due diligence by submitting the documents in the first instance (see generally May v May, 78 AD3d 667; Huma v Patel, 68 AD3d 821, 822).
3211(a)(1)(7)
Cog-Net Bldg. Corp. v Travelers Indem. Co., 2011 NY Slip Op 06014 (2nd Dept., 2011)
A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence submitted by the movant utterly refutes the plaintiff's allegations against it and conclusively establishes a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Rietschel v Maimonides Med. Ctr., 83 AD3d 810, 811; Fontanetta v John Doe, 73 AD3d 78, 83). Here, the documentary evidence submitted by the appellant failed to satisfy this standard, and the Supreme Court properly denied that branch of the appellant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it.
Furthermore, "[i]n considering 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'" (Ascani v EI Du Pont de Nemours & Co.,AD3d, 2011 NY Slip Op 05210 [2d Dept 2011], quoting Sokol v Leader, 74 AD3d 1180, 1181; see Leon v Martinez, 84 NY2d 83, 87-88). "Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff 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" (Rietschel v Maimonides Med. Ctr., 83 AD3d at 810; see Guggenheimer v Ginzberg, 43 NY2d 268, 275; Sokol v Leader, 74 AD3d at 1180-1181). The [*2]plaintiff alleged in its complaint that it had a relationship with the appellant "so close as to approach that of privity" (Sykes v RFD Third Ave. 1 Assoc., LLC, 15 NY3d 370, 372 [internal quotation marks omitted]). Since the appellant failed to show that this material fact alleged by the plaintiff was not a fact at all, and failed, moreover, to demonstrate that no significant dispute exists regarding the allegation, the appellant was not entitled to dismissal of the causes of action sounding in negligent misrepresentation and negligent failure to procure insurance (cf. Sykes v RFD Third Avenue. 1 Assoc., LLC, 15 NY3d 370; Benjamin Shapiro Realty Co. v Kemper Natl. Ins. Cos., 303 AD2d 245, 245-246). Accordingly, the Supreme Court properly denied that branch of the appellant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.
Mason v First Cent. Natl. Life Ins. Co. of N.Y., 2011 NY Slip Op 06010 (3rd Dept. 2011)
As to defendant's argument that this claim failed to state a cause of action (see CPLR 3211 [a] [7]), we disagree. The question to be resolved on such a motion is not whether plaintiff "can ultimately establish [her] allegations" and is likely to prevail, but whether, if believed, her complaint sets forth facts that constitute a viable cause of action (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Crepin v Fogarty, 59 AD3d at 838)[FN1]. Here, the allegations in the complaint, if accepted as true and accorded the benefit of every favorable inference, state such a claim (see Skibinsky v State Farm Fire & Cas. Co., 6 AD3d 975, 976 [2004]). Accordingly, defendant's motion to dismiss plaintiff's first cause of action on this ground must be denied.
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