Opinion
No. 2007-04833.
September 9, 2008.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Kelly, J.), dated April 19, 2007, as granted those branches of the defendant's motion pursuant to CPLR 3211 (a) (1) and (7) which were to dismiss the first cause of action to recover for overpayment of rent and the second cause of action to recover security deposit interest.
Zane and Rudofsky, New York, N.Y. (James B. Zane and Edward S. Rudofsky of counsel), for appellant.
DLA Piper US, LLP, New York, N.Y. (Todd B. Marcus and Megan Shea Harwick of counsel), and Edward I. Sussman, New York, N.Y., for respondent (one brief filed).
Before: Mastro, J.P., Skelos, Balkin and Leventhal, JJ.
Ordered that the order is affirmed insofar as appealed from, with costs.
A motion to dismiss a complaint 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 Ruby Falls, Inc. v Ruby Falls Partners, LLC, 39 AD3d 619). Here, the net lease submitted by the defendant seller in support of the motion included a provision that limited its liability. The provision stated that upon the sale of the subject property, the defendant seller would be "entirely freed and relieved of all existing and future covenants, obligations and liabilities." Since it was undisputed that the sale of the subject premises was final in May 2006, the documentary evidence conclusively established a defense to the plaintiff buyer's claims to recover damages under the first and second causes of action, which were to recover for overpayment of rent and to recover security deposit interest, respectively, pursuant to the net lease ( see CPLR 3211 [a]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Selinger Enters., Inc. v Cassuto, 50 AD3d 766; Sargent v New York Daily News, L.P., 42 AD3d 491).
In light of the foregoing, the plaintiffs remaining contentions are academic. Mastro, J.P, Skelos, Balkin and Leventhal, JJ., concur. [ See 2007 NY Slip Op 30892(U).]