Opinion
No. 2012–2106QC.
2014-07-28
ALLEY POND HOUSE CORP. Doing Business as Mizumi, Respondent, v. MAGIC PEST MANAGEMENT, LLC, Appellant.
Present: WESTON, J.P., ALIOTTA and ELLIOT, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered July 16, 2012. The order denied defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(2) and (7).
ORDERED that the order is affirmed, without costs.
In this action for, among other things, breach of a pest-control service agreement, defendant appeals from an order of the Civil Court that denied its motion to dismiss the complaint pursuant to CPLR 3211(a)(2) and (7).
The branch of defendant's motion seeking to dismiss the complaint pursuant to CPLR 3211(a)(2) was properly denied, as the complaint's demand for damages of “not less than” $20,000 for the first cause of action and “not less than” $1,600 for the second cause of action did not exceed the Civil Court's monetary jurisdiction of $25,000 (CCA 202).
The branch of defendant's motion seeking to dismiss the complaint pursuant to CPLR 3211(a)(7) was likewise properly denied, as the failure, if any, of the complaint to satisfy the particularity requirements of CPLR 3013 was remedied by plaintiff's affidavit in opposition to defendant's motion ( Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366 [1998]; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635–636 [1976] ). In addition, contrary to defendant's contention, the Civil Court's refusal to treat defendant's motion to dismiss as one for summary judgment was not an improvident exercise of discretion, as defendant's request that the court do so was raised for the first time in defendant's reply papers, plaintiff was not on notice that defendant's motion would so be treated, and the parties did not make it unequivocally clear that they were laying bare their proof and deliberately charting a summary judgment course (CPLR 3211[c]; see Four Seasons Hotels v. Vinnik, 127 A.D.2d 310 [1987] ). In any event, the motion papers reveal that material facts are in dispute.
We have examined defendant's other contentions and find them to be without merit.
Accordingly, the order is affirmed.