CPLR R. 3211 – Page 3

CPLR 3211(a)(1): Deposition not documentary evidence

CPLR 3211(a)(1)

JP Morgan Chase Bank, N.A. v Balliraj, 2014 NY Slip Op 00484 [2nd Dept. 2014]

A motion to dismiss pursuant to CPLR 3211(a)(1) "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; Paramount Transp. Sys., Inc. v Lasertone Corp., 76 AD3d 519, 520; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 37-38). The deposition testimony relied upon by the defendants in support of this branch of their cross motion does not constitute "documentary evidence" within the meaning of CPLR 3211(a)(1) (see Fontanetta v John Doe 1, 73 AD3d 78, 86). Further, contrary to the defendants' contention, the other documentary evidence upon which they rely does not conclusively establish that the plaintiff in Action No. 2, Residential Funding Company, LLC, lacks standing.

Bold is mine.

3211(a)(1)(7)

3211(a)(1)
3211(a)(7)

Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 2014 NY Slip Op 00587 [1st Dept. 2014]

Since the record does not affirmatively establish a valid obligation to arbitrate the issues raised herein, we must examine Goldman's alternative argument seeking dismissal of the action. With regard to the fraud allegations, Goldman argues that plaintiff failed to state a cause of action because the element of reasonable reliance is precluded as a matter of law by the disclaimer and disclosure in the offering circulars. We do not find that such argument is procedurally precluded by the fact that "Goldman's motion was made under CPLR 3211(a)(7)." The concurring opinion incorrectly maintains that Goldman cannot rely on documentary evidence (the disclaimer and disclosure in the offering circulars) because a CPLR 3211(a)(7) motion is limited to a review of the pleadings.

The motion court examined the purported documentary evidence, albeit over plaintiff's objections, but concluded that it did not bar the fraud claims. Plaintiff, however, has abandoned such procedural argument by failing to raise it on appeal (see Matter of Raqiyb v Fischer, 82 AD3d 1432, 1433, n [3rd Dept 2011], citing Matter of Ifill v Fischer, 72 AD3d 1367, n [3rd Dept 2010]). Instead, in its opening paragraph of the argument section opposing Goldman's motion to dismiss the fraud claims, plaintiff simply comments:

"Goldman's argument on appeal strays far beyond addressing the sufficiency of the allegations. Instead, Goldman seeks to play on a field of disputed issues of fact. But this provides no basis for dismissing this Complaint. That is particularly the case here when this Complaint is based not just on well-pleaded allegations, but on inculpatory Goldman documents disclosed in prior proceedings [emphasis added]."

Thus, on this appeal, plaintiff does not claim that this Court is "procedurally" precluded from examining the documentary evidence at issue because Goldman moved to dismiss under CPLR 3211(a)(7). Rather, plaintiff appears to be arguing that the documentary evidence simply raises "disputed issues of fact," which, as plaintiff correctly asserts, is not enough for a dismissal under CPLR 3211(a)(7).

In any event, the concurrence's contention that this Court is limited to the pleadings, when reviewing a motion to dismiss pursuant to CPLR 3211(a)(7), is not a completely accurate statement of the law. What the Court of Appeals has consistently said is that evidence in an affidavit used by a defendant to attack the sufficiency of a pleading "will seldom if ever warrant the relief [the defendant] seeks unless [such evidence] conclusively establishes that plaintiff has no cause of action" (Rovello v Orofino Realty Co, Inc, 40 NY2d 633, 636 [1976] [emphasis added]; see also Guggenheim v Ginzburg, 43 NY2d 268 [1977]).

A CPLR 3211(a)(7) motion may be used by a defendant to test the facial sufficiency of a pleading in two different ways. On the one hand, the motion may be used to dispose of an action in which the plaintiff has not stated a claim cognizable at law. On the other hand, the motion may be used to dispose of an action in which the plaintiff identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action. As to the latter, the Court of Appeals has made clear that a defendant can submit evidence in support of the motion attacking a well-pleaded cognizable claim (see Rovello, 40 NY2d 633; Guggenheim, 43 NY2d 268; see also Board of Managers of Fairways at N. Hills Condominiums v Fairways at N. Hills, 150 AD2d 32 [2d Dept 1989]).^[FN4]

When documentary evidence is submitted by a defendant "the standard morphs from whether the plaintiff has stated a cause of action to whether it has one" (John R. Higgitt, CPLR 3211[A][7]: Demurrer or Merits-Testing Device?, 73 Albany Law Review 99, 110 [2009]). As alleged here, if the defendant's evidence establishes that the plaintiff has no cause of action (i.e., that a well-pleaded cognizable claim is flatly rejected by the documentary evidence), dismissal would be appropriate (see e.g. Constructamax, Inc. v Dodge Chamberlin Luzine Weber, Assoc. Architects, LLP, 109 AD3d 574 [2d Dept 2013]; Rabos v R & R Bagels & Bakery, Inc., 100 AD3d 849, 851—852 [2d Dept 2012]; Skillgames, LLC v Brody, 1 AD3d 247, 250 [1st Dept 2003]; Kliebert v McKoan, 228 AD2d 232 [1st Dept 1996], lv denied 89 NY2d 802 [1996]; Board of Managers of Fairways at N. Hills Condominiums, 150 AD2d 32).

Note the concurring opinion.

Bold is mine. Everything else is in original.

Premature dismissal (3211/3212 was a premature 4401)

CPLR 3212
CPLR 3211
CPLR 4401

Deonarine v Montefiore Med. Ctr., 2014 NY Slip Op 00299 [1st Dept. 2014]

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered July 19, 2012, which, to the extent appealed from as limited by the briefs, denied defendant's motion to dismiss the complaint pursuant to CPLR 3211 and 3212, and denied defendant's motion to preclude plaintiff's use of his deposition at trial, unanimously affirmed as to the denial of defendant's motion to dismiss, and the appeal therefrom otherwise dismissed, without costs.

The court properly denied the motion to dismiss the complaint inasmuch as it was based solely on defendant's assertion that plaintiff would be unable to make out a prima facie case at trial by reason of his anticipated "unavailability to testify as a result of his imminent deportation . . ." Accordingly the motion was actually a prematurely made motion for judgment pursuant to CPLR 4401, which has to await the close of plaintiff's case at trial even if plaintiff's ultimate success in the action is improbable (see Cass v Broome County Coop. Ins. Co., 94 AD2d 822, 823 [3rd Dept 1983]). The court's denial of defendant's motion to preclude was effectively an evidentiary ruling made in advance of trial and, as such, is not appealable (see Balcom v Reither, 77 AD3d 863, 864 [2nd Dept 2010]). We have considered defendant's remaining contentions and find them to be without merit.

Emphasis is mine.

3211(a)(7) Court of Appeals

CPLR R. 3211(a)(7) pleading fails to state a cause of action

Miglino v Bally Total Fitness of Greater N.Y., Inc., 2013 NY Slip Op 00780 (2013)

In this case, though, Bally has moved to dismiss under CPLR 3211 (a)
(7), which limits us to an examination of the pleadings to determine
whether they state a cause of action. Further, we must accept facts
alleged as true and interpret them in the light most favorable to
plaintiff; and, as Supreme Court observed, plaintiff may not be
penalized for failure to make an evidentiary showing in support of a
complaint that states a claim on its face (see Rovello v Orofino Realty Co.,
40 NY2d 633, 635 [1976] [as long as a pleading is facially sufficient,
the plaintiff is not obligated to come forward with claim-sustaining
proof in response to a motion to dismiss unless the court treats the
motion as one for summary judgment and so advises the parties]).

3211(b) dismiss affirmative defenses

3211(b)

Chestnut Realty Corp. v Kaminski, 95 AD3d 1254 (2nd Dept. 2012)

A party may move to dismiss a defense "on the ground that a defense is not stated or has no merit" (CPLR 3211 [b]). "In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference" (Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2008]; see Greco v Christoffersen, 70 AD3d 769, 771 [2010]). "[I]f there is any doubt as to the availability of a defense, it should not be dismissed" (Fireman's Fund Ins. Co. v Farrell, 57 AD3d at 723; see Becker v Elm A.C. Corp., 143 AD2d 965, 966 [1988]). Here, the Supreme Court should have granted that branch of the plaintiff's cross motion which was to dismiss the third affirmative defense, which asserted that the complaint failed to state a cause of action, since the complaint was sufficient to state a cause of action.

However, the Supreme Court properly denied that branch of the plaintiff's cross motion which was to dismiss the defendants' other affirmative defenses. Taking the allegations in the first and second affirmative defenses as true, the defendants sufficiently stated an affirmative defense of surrender by operation of law (see e.g. Riverside Research Inst. v KMGA, Inc., 68 NY2d at 691-692), and the plaintiff has not shown that this affirmative defense is without merit as a matter of law. Furthermore, taking the allegations in the fourth affirmative defense as true, the defendants sufficiently stated an affirmative defense of wrongful accounting (see Fireman's Fund Ins. Co. v Farrell, 57 AD3d at 723), and the plaintiff did not show that this affirmative defense is without merit as a matter of law.

See also South Point, Inc. v Redman, 2012 NY Slip Op 03165 (2nd Dept. 2012)

Personal Jurisdiction. Forum Non Con. Venue. Forum Selection.

CPLR R. 3211(a)(7) pleading fails to state a cause of action

CPLR § 6301 Grounds for preliminary injunction and temporary restraining order

CPLR R. 327 Inconvenient forum

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

Cantalupo Constr. Corp. v 2319 Richmond Terrace Corp., 2012 NY Slip Op 04310 (2nd Dept. 2012)

Given the circumstances of this case, and in the interests of justice and judicial economy, the Supreme Court should have granted that branch of the plaintiff's motion which was to remove the summary nonpayment proceeding pending in Civil Court, Richmond County, to the Supreme Court, Richmond County, and to consolidate that proceeding with the instant action for specific performance of an alleged agreement to purchase the subject property (see Richmond Amboy Realty, LLC v 3881 Richmond Ave. Realty, Inc., 72 AD3d 783; Kally v Mount Sinai Hosp., 44 AD3d 1010, 1010-1011; Morrell & Co. Wine Emporium v Richalan Realty Corp., 93 AD2d 736, 737).

Gliklad v Cherney, 2012 NY Slip Op 05333 (1st Dept. 2012)

The IAS court erred in granting plaintiff's motion to strike defendant's affirmative defense of lack of personal jurisdiction. Contrary to plaintiff's contention, defendant did not waive this defense by moving for summary judgment dismissing the complaint on the merits, given that defendant had previously raised the jurisdictional defense. Competello v Giorando (51 NY2d 904 [1980]) is distinguishable, as the defendant in that case failed to raise the defense of lack of personal jurisdiction in a motion pursuant to CPLR 3211(a)(7).

Defendant failed to meet his burden of establishing that New York is an inconvenient forum for this action (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]). Further, the subject promissory note contained a clause selecting New York as the forum, barring defendant's forum non conveniens motion (see Sebastian Holdings, Inc. v Deutsche Bank AG., 78 AD3d 446, 447 [2010]).

The court properly granted plaintiff's motion for a preliminary injunction barring defendant from prosecuting the action he had commenced in Israel over the same promissory note at issue in the instant action. A party moving for a preliminary injunction must establish a likelihood of success on the merits, irreparable harm if the injunction were not granted, and a balance of the equities in the movant's favor (see W.T. Grant Co. v Srogi, 52 NY2d 496, 517 [1981]; Casita, L.P. v MapleWood Equity Partners [Offshore] Ltd., 43 AD3d 260 [2007]). Here, even if defendant may have a meritorious defense, plaintiff made a prima facie showing that his claim under the promissory note has merit (see Matter of Witham v Finance Invs., Inc., 52 AD3d 403 [2008]; Bingham v Struve, 184 AD2d 85 [1992]). Plaintiff also established a risk that he would suffer irreparable harm if he were to travel to Israel to litigate the other action, since this act might jeopardize his Canadian asylum status. In addition, the balance of the equities favors plaintiff, since the expenditures of time and resources by the parties and the court would be potentially wasted if the Israeli action, which defendant commenced one-and-a-half years after the commencement of the instant action, were to result in a decision precluding any decision the court might have reached in this case (see Jay Franco & Sons Inc. v G Studios, LLC, 34 AD3d 297 [2006]).

Further, defendant appeared to be forum shopping by attempting to obtain a favorable decision from the Israeli court, which would interfere with the New York court's ability to resolve the issues before it (see IRB-Brasil Resseguros S.A. v Portobello Intl. Ltd., 59 AD3d 366 [2009]).

Finally, the court did not err in denying defendant's motion to renew. Contrary to defendant's contention that the court should have ordered plaintiff to post an undertaking to cover defendant's damages in the event the injunction were found to have been erroneously issued, the injunction would actually save both parties time and money by relieving them from the burden of litigating a second action (see Ithilien Realty Corp. v 180 Ludlow Dev. LLC, 80 AD3d 455 [2011]; Visual Equities Inc. v Sotheby's, Inc., 199 AD2d 59 [1993]).

Pratik Apparels, Ltd. v Shintex Apparel Group, Inc., 2012 NY Slip Op 04985 (2nd Dept. 2012)

"A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court. Absent a strong showing that it should be set aside, a forum selection agreement will control" (Hluch v Ski Windham Operating Corp., 85 AD3d 861, 862 [internal quotation marks and citations omitted]; see Bernstein v Wysoki, 77 AD3d 241, 248-249; Stravalle v Land Cargo, Inc., 39 AD3d 735, 736). "Forum selection clauses are enforced because they provide certainty and predictability in the resolution of disputes, particularly those involving international business agreements" (Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534). Here, the forum selection clause contained in the subject bill of lading submitted by the defendant Classic Logistics, Inc. (hereinafter Classic), conclusively established that the plaintiff's action against Classic must be brought in federal court (see CPLR 3211[a][1]; W.J. Deutsch & Sons, Ltd. v Charbaut Am., Inc., 57 AD3d 529, 530). The plaintiff failed to show that enforcement of the forum selection clause would be unreasonable, unjust, or would contravene public policy, or that the clause is invalid because of fraud or overreaching (see Bernstein v Wysoki, 77 AD3d at 249-250; Best Cheese Corp. v All-Ways Forwarding Int'l. Inc., 24 AD3d 580, 581; Koko Contr. v Continental Envtl. Asbestos Removal Corp., 272 AD2d 585, 586).

Kassotis v Kassotis, 2012 NY Slip Op 05148 (2nd Dept. 2012)

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the plaintiff's cross motion to the extent it did, and in denying the defendant's motion without prejudice to renewal in the Family Court, Westchester County (see CPLR 510[3]; McCarthy v McCarthy, 49 AD3d 696, 697). The parties have litigated issues relating to child support in the Family Court, Westchester County, since 2006. The so-ordered stipulation, which the defendant seeks to modify, was entered in the Family Court, Westchester County. Further, the petitions filed by the defendant in the Family Court, Westchester County, are apparently still pending, as the defendant filed objections to the Support Magistrate's order denying the petitions. The Family Court, Westchester County, is familiar with the issues in the matter, while the Supreme Court, Queens County, has not been involved with the parties since the judgment of divorce was entered in February 1999. In addition, the defendant and the parties' children reside in Westchester County, and it appears that most of the material witnesses are in Westchester County (see CPLR 510[3]; McCarthy v McCarthy, 49 AD3d at 697).

Pruitt v Patsalos, 2012 NY Slip Op 04986 (2nd Dept. 2012)

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the plaintiffs' motion pursuant to CPLR 510(2) to change the venue of the action from Orange County to Dutchess County is granted, and the Clerk of the Supreme Court, Orange County, is directed to deliver to the Clerk of the Supreme Court, Dutchess County, all papers filed in the action and certified copies of all minutes and entries (see CPLR 511[d]).

To obtain a change of venue pursuant to CPLR 510(2), a movant is required to produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained in the county where venue was properly placed (see Matter of Michiel, 48 AD3d 687; Jablonski v Trost, 245 AD2d 338, 339; Albanese v West Nassau Mental Health Ctr., 208 AD2d 665, 666). Under the circumstances of this case, including the evidence demonstrating that the defendant is a retired Orange County Supreme Court Justice, who presided in that court for more than two decades, that his relative is a retired Orange County Court Judge, and that the defendant's daughter is a Support Magistrate in the Orange County Family Court, the protection of the court from even a possible appearance of impropriety requires a change of the venue of the action from Orange County to Dutchess County (see Saxe v OB/GYN Assoc., 86 NY2d 820, 822; Kavelman v Taylor, 245 AD2d 9; Milazzo v Long Is. Light. Co., 106 AD2d 495).

Peculiar 3211 and other 3211

3211(a)

3211(d)

Digital Ctr., S.L. v Apple Indus., Inc., 2012 NY Slip Op 02806 (1st Dept., 2012)

This matter arose from a dispute between plaintiff, a Spanish company that manufactures photo booths, and defendant, a New York-based coin-operated machine business that had purchased some of plaintiff's booths. In lieu of an answer, defendant filed a motion to dismiss the complaint under CPLR 3211(a)(7), for failure to state a cause of action and CPLR 3211(a)(8), for lack of jurisdiction over plaintiff.

Defendant's CPLR 3211(a)(8) motion is based on what it argues is plaintiff's failure to register as a foreign corporation doing business in the State of New York as required by Business Corporation Law § 1312(a). Defendant asserts that plaintiff ships hundreds of photo booths into New York State, that its contacts within the State are sufficiently systematic and regular to warrant registration with the Secretary of State, and that plaintiff's failure to do so mandates dismissal of the action. However, it is well established that the solicitation of business and facilitation of the sale and delivery of merchandise incidental to business in interstate and/or international commerce is typically not the type of activity that constitutes doing business in the state within the contemplation of § 1312(a) (Uribe v Merchants Bank of N.Y., 266 AD2d 21 [1999]). The court correctly denied the motion, finding that at the very least, the record shows that a question of fact exists concerning whether or not plaintiff's contacts were systematic and regular enough to warrant compliance with the statute (see e.g. Alicanto, S.A. v Woolverton, 129 AD2d 601 [1987]).

Furthermore, it should be noted that defendant brought this part of its motion under the wrong subsection of CPLR 3211(a). Dismissal pursuant to Business Corporation Law § 1312(a) is not jurisdictional, but rather, affects the legal capacity to sue. Accordingly, a motion to dismiss for lack of compliance with Business Corporation Law § 1312(a) is properly brought [*2]pursuant to CPLR 3211(a)(3), not (a)(8)(see e.g. Hot Roll Mfg. Co. v Cerone Equip. Co., 38 AD2d 339 [1972]). It should also be noted that the motion court's characterization of this issue as being one of standing was improper. The question of capacity to sue is conceptually distinct from the question of standing (see e.g. People v Grasso, 54 AD3d 180, 190 n 4 [2008], citing Silver v Pataki, 96 NY2d 532, 537 [2001]).

Turning to the merits, the motion court correctly determined, as to the complaint's first and second causes of action, that plaintiff sufficiently stated claims for breach of contract and breach of the duty of good faith and fair dealing, arising from the purchase by defendant of 120 photo booths from plaintiff in or about April and May of 2009. Defendant received 60 of those booths, and allegedly cancelled shipment of the remaining 60 and refused to make payment.

The motion court erred in finding that plaintiff sufficiently alleged a cause of action for an account stated. Our review of the record shows an essential element of such claim to be utterly missing: an agreement with respect to the balance due (Raytone Plumbing Specialities, Inc. v Sano Constr. Corp., 92 AD3d 855 [2012]). Indeed, while the agreement on the balance due may be implied by the defendant's retention of the billings for an unreasonable period of time without objecting to them (id.), plaintiff here failed to plead precisely what that amount is and to support that amount with invoices sent to and retained by defendant.

Finally, plaintiff's seventh cause of action, for patent, trademark and trade dress infringement must be dismissed in part. Plaintiff has not stated the elements of a cause of action for patent infringement (see e.g. McZeal v Sprint Nextel Corp., 501 F3d 1354, 1357 [Fed Cir 2007]). It also failed to state a cause of action for infringement of a registered trademark; however, it has sufficiently stated a cause of action on a trade dress theory (see e.g. Yurman Design, Inc. v PAJ, Inc. 262 F3d 101, 115-116 [2d Cir 2001]).

Solomons v Douglas Elliman LLC, 2012 NY Slip Op 02577 (1st Dept., 2012)

OBRC's dismissal motion was properly denied because, at this stage, neither Travin's affidavit nor the certificate of occupancy is sufficient to rebut plaintiff's claim that the subject building contains at least six units. A motion to dismiss under CPLR 3211, when based on documentary evidence, is granted only if that 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 [2002]). The affidavit of Travin, "which do[es] no more than assert the inaccuracy of plaintiff[ s] allegations, may not be considered, in the context of a motion to dismiss, for the purpose of determining whether there is evidentiary support for the complaint" (Tsimerman v Janoff, 40 AD3d 242, 242 [2007]). In addition, the 22-year-old certificate of occupancy does not conclusively prove how many apartments were in the building when plaintiff tried to rent in it.

Eighth Ave. Garage Corp. v Kaye Scholer LLP, 2012 NY Slip Op 02402 (1st Dept., 2012)

Supreme Court properly considered the evidence submitted on the motion, including the e-mails, which conclusively disposed of plaintiffs' claims (see Pitcock v Kasowitz, Benson, Torres & Friedman LLP, 74 AD3d 613 [2010]). Accordingly, it is of no moment that discovery has not been conducted. In addition, plaintiffs have not asserted that facts essential to justify [*2]opposition to the motion may have existed but could not be stated (see CPLR 3211[d]).

Muhlhahn v Goldman, 2012 NY Slip Op 01562 (1st Dept., 2012)

Defendant Goldman's affidavit and the attached recordings of his interviews with plaintiff should have been considered on the motion. An affidavit is an appropriate vehicle for authenticating and submitting relevant documentary evidence (see Suss v New York Media, Inc., 69 AD3d 411, 412 [2010]), and may provide "connecting link[s]" between the documentary evidence and the challenged statements (Standard Chartered Bank v D. Chabbott, Inc., 178 AD2d 112 [1991]). Here, Goldman's affidavit was sufficient to authenticate the recordings of his interviews with plaintiff, since he stated in his affidavit that he was a participant in the recorded conversations and that the recordings were complete and accurate and had not been altered (see People v Ely, 68 NY2d 520, 527 [1986]; Lipton v New York City Tr. Auth., 11 AD3d 201 [2004], lv denied 5 NY3d 707 [2005]). Contrary to the motion court's finding, Goldman never stated that the recordings were "excerpts" or "highlights" of plaintiff's statements. Instead, he stated that the attached recordings were only some of the many recorded interviews of plaintiff that he had conducted. Moreover, in his reply affidavit, Goldman clarified that his opening affidavit was only meant to authenticate the evidence and aid the court by highlighting relevant statements.

Based on the documentary evidence and Goldman's affidavit, challenged statements 4, 5, 7, 8, 10, and 12 are true or substantially true, and thus are not actionable (see e.g. Gondal v New York City Dept. of Educ., 19 AD3d 141, 142 [2005]; Chinese Consol. Benevolent Assn. v Tsang, 254 AD2d 222, 222-223 [1998]). In addition, statements 4 through 10 either contain non-actionable opinion or are not reasonably susceptible of a defamatory connotation (see Ava v NYP Holdings, Inc., 64 AD3d 407, 412-413 [2009], lv denied 14 NY3d 702 [2010]; Guerrero v Carva, 10 AD3d 105, 111 [2004]). In any event, a claim based on challenged statements 6, 7, and 8 is barred by the single instance rule (see Bowes v Magna Concepts, 166 AD2d 347 [1990]). [*2]

We also dismiss plaintiff's claim based on challenged statement 11, which states, in pertinent part, that plaintiff "has made herself an outlaw of sorts by not carrying malpractice insurance." Plaintiff admitted on The Brian Lehrer Show that she did not carry malpractice insurance, and the recording of that radio interview was adequately authenticated.

Improper 3211 conversion and some jurisdictional stuff

3211

Bokara Rug Co., Inc. v Kapoor, 2012 NY Slip Op 02269 (1st Dept., 2012)

The motion court improperly treated the motion to dismiss pursuant to CPLR 3211 as a motion for summary judgment dismissing the complaint without providing adequate notice to plaintiffs (see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]). Plaintiffs did not deliberately chart a summary judgment course, even though they submitted some evidence in opposition to defendants' motion (see Wiesen v New York Univ., 304 AD2d 459, 460 [2003]). Thus, the motion will be reviewed under the standard applicable on a motion to dismiss (see Velez v Captain Luna's Mar., 74 AD3d 1191, 1191 [2010]).

The IAS court erred by dismissing the first, fifth, and sixth causes of actions (alleging fraud, negligent misrepresentation, and breach of contract, respectively) as time-barred. We agree with the motion court that to the extent that these claims are based on transactions or representations that occurred outside the applicable limitations periods, they are barred. However, in support of their motion to dismiss, defendants submitted an ambiguous affidavit and a sampling of invoices, and referred to documents submitted in another case. Defendants did not meet their initial burden of demonstrating that no sales of the type complained of by plaintiff were made by Kapoor Exports or related entities during the four-year limitations period applicable to the breach of contract claim (UCC 2-725; see Benn v Benn, 82 AD3d 548, 548 [2011]; Uniflex, Inc. v Olivetti Corp. of Am., 86 AD2d 538, 539 [1982]), or that none of the alleged misrepresentations in connection with such sales occurred within the six-year limitations period applicable to the fraud and negligent misrepresentation claims (CPLR 203[g], 213[1], [8]).

The IAS court properly denied so much of defendants' motion as sought dismissal on the [*2]ground of lack of personal jurisdiction over Vikram Kapoor. It is undisputed that there were other means of acquiring jurisdiction over his person other than personal service in New York. Thus, Kapoor cannot establish an essential element of the immunity defense to personal jurisdiction (see Olbi USA v Agapov, 294 AD2d 139 [2002]; Brause 59 Co. v Bridgemarket Assoc., 216 AD2d 200, 201 [1995]).

Defendants failed to meet their burden to establish that New York is an inconvenient forum for this action (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]; Bank Hapoalim [Switzerland] Ltd. v Banca Intesa S.p.A., 26 AD3d 286, 287 [2006]). There is nothing in the record to suggest that the court did not properly consider the relevant factors (see Pahlavi at 479).

3211(b) dismiss affirmative defenses

3211(b)

South Point, Inc. v Redman, 2012 NY Slip Op 03165 (2nd Dept., 2012)

The Supreme Court erred in determining that the doctrine of law of the case precluded the granting of the plaintiff's motion pursuant to CPLR 3211(b) to dismiss the affirmative defense asserted by the defendant Helen M. Prescod. The doctrine of law of the case "applies to determinations which were necessarily resolved on the merits in [a] prior order" (Hampton Val. Farms, Inc. v Flower & Medalie, 40 AD3d 699, 701; see Lehman v North Greenwich Landscaping, LLC, 65 AD3d 1293, 1294). Here, contrary to the Supreme Court's determination, the prior order at issue did not address the merits of Prescod's affirmative defense (see Lehman v North Greenwich Landscaping, LLC, 65 AD3d at 1294).

Nevertheless, we affirm the denial of the plaintiff's motion to dismiss Prescod's affirmative defense, albeit on a different ground from that relied upon by the Supreme Court (see [*2]Montalvo v Nel Taxi Corp., 114 AD2d 494, 494; see also Menorah Nursing Home v Zukov, 153 AD2d 13, 19). "A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (CPLR 3211[b]). Upon such a motion, the movant bears the burden of demonstrating that a defense is not stated or is without merit as a matter of law (see Butler v Catinella, 58 AD3d 145, 148; Vita v New York Waste Servs., LLC, 34 AD3d 559, 559). The nonmoving defendant is "entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed" (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743; see Butler v Catinella, 58 AD3d at 148).

Here, the plaintiff failed to satisfy its burden of demonstrating as a matter of law that the defense at issue was without merit. The defense was premised on Prescod's claim that she has a valid mortgage on the subject property with priority over the plaintiff's mortgage. Although the plaintiff raised numerous issues of fact regarding the validity of Prescod's mortgage, the manner in which it was procured, and the extent to which its existence was disclosed to the plaintiff's predecessor in interest, the plaintiff failed to offer evidence demonstrating as a matter of law that Prescod's defense was without merit (cf. Vita v New York Waste Servs., LLC, 34 AD3d at 559). Accordingly, the plaintiff was not entitled to the relief sought.

3211

County of Suffolk v MHC Greenwood Vil., LLC, 2012 NY Slip Op 00174 (2nd Dept., 2012)

"When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" (Sokol v Leader, 74 AD3d 1180, 1180-1181; see Guggenheimer v Ginzburg, 43 NY2d 268, 275). "In considering such a motion, 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" (Sokol v Leader, 74 AD3d at 1181 [internal quotation marks omitted]; see Nonnon v City of New York, 9 NY3d 825, 827; Leon v Martinez, 84 NY2d 83, 87-88). " Whether a plaintiff can ultimately establish its allegations is not part of the calculus'" (Sokol v Leader, 74 AD3d at 1181, quoting EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19). "A court is, of course, 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 AD3d at 1181; see CPLR 3211[c]). "If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one'" (Sokol v Leader, 74 AD3d at 1181-1182, quoting Guggenheimer v Ginzburg, 43 NY2d at 275). "Yet, affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action" (Sokol v Leader, 74 AD3d at 1182 [internal quotation marks omitted]; see Lawrence v Graubard Miller, 11 NY3d 588, 595; Rovello v Orofino Realty Co., 40 NY2d 633, 636). "Indeed, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it'" (Sokol v Leader, 74 AD3d at 1182, quoting Guggenheimer v Ginzburg, 43 NY2d at 275).

Here, the evidence submitted by the defendants did not demonstrate that any fact alleged in the complaint was undisputedly "not a fact at all" (see Guggenheimer v Ginzburg, 43 NY2d at 275; Sokol v Leader, 74 AD3d at 1182). Accordingly, the Supreme Court properly denied 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.

Makris v Darus-Salaam Masjid, N.Y., Inc., 2012 NY Slip Op 00340 (2nd Dept., 2012)

"On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704; see Leon v Martinez, 84 NY2d 83, 87). 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 (see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275; Fishberger v Voss, 51 AD3d 627, 628). "A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is [*2]barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law" (Mendelovitz v Cohen, 37 AD3d 670, 670; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326).

Contrary to Tower's contention, the Supreme Court properly denied its motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7). Tower failed to carry its burden of demonstrating that the faulty workmanship exclusion applies in this particular case, and that the exclusion is subject to no other reasonable interpretation than the one offered by it (see Cragg v Allstate Indem. Corp., 17 NY3d 118, 122; Insurance Co. of Greater N.Y. v Clermont Armory, LLC, 84 AD3d 1168, 1170; 242-44 E. 77th St., LLC v Greater N.Y. Mut. Ins. Co., 31 AD3d 100, 104-106). Consequently, Tower failed to utterly refute the plaintiffs' allegation that Tower wrongfully denied their claim or to establish that their allegation was "not a fact at all" (Guggenheimer v Ginzburg, 43 NY2d at 275; see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997).

Conniff v 32 Gramercy Park Owners Corp., 2012 NY Slip Op 00253 (1st Dept., 2012)

The dismissal should have been without prejudice because the court dismissed the complaint upon plaintiff's default in failing to oppose the motion to dismiss (see Hernandez v St. Barnabas Hosp., __ AD3d __, 2011 NY Slip Op 7722 [2011]; Aguilar v Jacoby, 34 AD3d 706, 708 [2006]). The Court did not address the merits of the motion.

Kaplan v Roberts, 2012 NY Slip Op 00492 (2nd Dept., 2012)

At the outset, although the Supreme Court did not give "adequate notice to the parties" that it would treat the defendant's motion as one for summary judgment (CPLR 3211[c]), where, as here, a specific request for summary judgment was made and the parties " deliberately chart[ed] a summary judgment course'" (Mihlovan v Grozavu, 72 NY2d 506, 508, quoting Four Seasons Hotels v Vinnik, 127 AD2d 310, 320), the court was authorized to treat Equinox's motion as one for summary judgment (see Burnside 711, LLC v Nassau Regional Off-Track Betting Corp., 67 AD3d 718, 720).

Furthermore, the Supreme Court should have granted that branch of Equinox's motion which was pursuant to CPLR 3211(c) and 3212 for summary judgment dismissing the fourth cause of action in the third-party complaint, which sought to recover damages for breach of contract. When the parties' intent to be bound by a contractual obligation "is determinable by written agreements, the question is one of law," which can be resolved by the court on a motion for summary judgment (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291; see ADCO Elec. Corp. v HRH Constr., LLC, 63 AD3d 653, 654; German Masonic Home Corp. v DeBuono, 295 AD2d 312, 313). "A question of fact arises as to the parties' intent to enter into an enforceable obligation [o]nly where the intent must be determined by disputed evidence or inferences outside the written words of the instrument"' (ADCO Elec. Corp. v HRH Constr., LLC, 63 AD3d at 654, quoting Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d at 291).

Here, even assuming that the "member policies" constituted binding contracts between Equinox and each of its individual members, Equinox established, prima facie, that the provision therein concerning use of the facility by children was clear and unambiguous, and did not create any obligation on the part of Equinox to ensure that Roberts would be protected against any and all dangers potentially posed by another member's failure to properly supervise his or her children (see Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d at 292; German Masonic Home Corp. v DeBuono, 295 AD2d at 313; Berghold v Kirschenbaum, 287 AD2d 673, 673). In opposition, Roberts failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of Equinox's motion which was for summary judgment dismissing the fourth cause of action in the third-party complaint.

The Supreme Court also should have granted that branch of Equinox's motion which was pursuant to CPLR 3211(c) and 3212 for summary judgment dismissing the fifth cause of action in the third-party complaint, which sought to recover damages for negligence. A property owner, or one in possession or control of property, "has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others" (Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d 946, 947; see Millan v AMF Bowling Ctrs., Inc., 38 AD3d 860, 860-861). This duty arises when there is an ability and an opportunity to control such conduct, and an awareness of the need to do so (see Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d at 947; Jaume v Ry Mgt. Co., 2 AD3d 590, 591; Cutrone v Monarch Holding Corp., 299 AD2d 388, 389). In support of this branch of its motion, Equinox submitted evidence demonstrating, prima facie, that it did not have the ability and opportunity to control the conduct at issue through the exercise of reasonable measures, and that it had no awareness of the need to control the conduct of the child (see Hillen v Queens Long Is. Med. Group, P.C., 57 AD3d at 947; Jaume v Ry Mgt. Co., 2 AD3d at 591; Lazar v TJX Cos., 1 AD3d 319, 319). In opposition, Roberts failed to raise a triable issue of fact (see Hillen v Queens [*3]Long Is. Med. Group, P.C., 57 AD3d at 947; Victor C. v Lazo, 30 AD3d 365, 367). Accordingly, the Supreme Court should have granted that branch of Equinox's motion which was for summary judgment dismissing the fifth cause of action in the third-party complaint.

Contrary to the Supreme Court's determination, there is no basis to believe that facts necessary to properly oppose the motion for summary judgment would be uncovered through disclosure (see Gabrielli Truck Sales v Reali, 258 AD2d 437, 438; Glassman v Catli, 111 AD2d 744, 745).

Henderson v Kingsbrook Jewish Med. Ctr., 2012 NY Slip Op 00334 (2nd Dept., 2012)

In determining 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 NY2d 83, 87-88; see Nonnon v City of New York, 9 NY3d 825, 827). In addition, the pleading is to be "afforded a liberal construction" (Sarva v Self Help Community Servs., Inc., 73 AD3d 1155, 1155).

Here, the complaint states a cause of action alleging a violation of the plaintiffs' right of sepulcher, since the facts stated therein allege that the defendant interfered with the plaintiffs' "absolute right to the immediate possession of a decedent's body for preservation and burial" (Melfi v Mount Sinai Hosp., 64 AD3d 26, 31). Although the delay in releasing the decedent's body was not inordinate and may ultimately be determined to have been reasonable and proper under all of the circumstances, "[w]hether [the] plaintiff can ultimately establish [his] allegations is not part of the calculus in determining a motion to dismiss [made pursuant to CPLR 3211(a)(7)]" (ECBI, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19; see Ginsburg Dev. Cos., LLC v Carbone, 85 AD3d 1110, 1111).

Fleyshman v Suckle & Schlesinger, PLLC, 2012 NY Slip Op 00176 (2nd Dept., 2012)

Moreover, the Supreme Court should have granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, which alleged a violation of Judiciary Law § 487. Even as amplified by the plaintiff's affidavit, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83), the complaint failed to allege that the defendants acted "with intent to deceive the court or any party" (Judiciary Law § 487[1]; see Jaroslawicz v Cohen, 12 AD3d 160, 160-161). Further, the plaintiff's allegation that the defendants "willfully delayed [her] recovery with a view to their own ends and benefit" is a bare legal conclusion, "which is not entitled to the presumption of truth normally afforded to the allegations of a complaint" (Rozen v Russ & Russ, P.C., 76 AD3d 965, 969; see Judiciary Law § 487[2]).