Summary
affirming denial of CPLR 3211 motion
Summary of this case from Chiapperini v. Gander Mountain Co.Opinion
(1310) CA 01-00460.
November 9, 2001.
(Appeal from Order of Supreme Court, Erie County, Rath, Jr., J. — Summary Judgment.)
PRESENT: PINE, J.P., SCUDDER, BURNS, GORSKI AND LAWTON, JJ.
Order unanimously affirmed without costs.
Memorandum:
Supreme Court properly denied that part of defendant's motion seeking dismissal of the complaint for failure to state a cause of action. "In determining a CPLR 3211 (a) (7) motion, the court must 'accord the complaint a liberal construction, assume its factual allegations to be true, draw every possible favorable inference therefrom and determine only whether any cognizable cause of action has been alleged'" ( Dorety Constr. v. Francese, Inc., 252 A.D.2d 656, 656-657, quoting Esposito-Hilder v. SFX Broadcasting, 236 A.D.2d 186, 187-188). Here, plaintiff sufficiently set forth the terms of the parties' Property Settlement Agreement concerning plaintiff's interest in defendant's Deferred Compensation Agreement and alleged that defendant breached the parties' agreement when his partnership terminated the Deferred Compensation Agreement.
Further, the court properly denied that part of defendant's motion seeking summary judgment dismissing the complaint because defendant failed to establish his entitlement to judgment as a matter of law ( see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). It is well settled that nonvested deferred compensation is marital property subject to equitable distribution ( see, Burns v. Burns, 84 N.Y.2d 369, 376) and thus, contrary to defendant's contention, plaintiff had an interest in the Deferred Compensation Agreement when defendant and his partners terminated it.