Opinion
12-21-2016
Robert CHEROFSKY, etc., appellant, v. Alan CHEROFSKY, et al., respondents.
Adrienne Packer, Monsey, NY, for appellant. Connors & Sullivan, PLLC, Brooklyn, NY (Kristofer J. Kasnicki of counsel), for respondents.
Adrienne Packer, Monsey, NY, for appellant.
Connors & Sullivan, PLLC, Brooklyn, NY (Kristofer J. Kasnicki of counsel), for respondents.
L. PRISCILLA HALL, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
In an action to recover damages based on alleged breaches of oral agreements, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Rockland County (Alfieri, Jr., J.), dated October 2, 2015, as granted 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.
ORDERED that the order is affirmed insofar as appealed from, with costs.
This action involves a dispute between the plaintiff, Robert Cherofsky, individually and as administrator for the estates of his parents, and the defendants, who are his cousins. The plaintiff seeks to recover damages in the amount of $16,000 from each of the defendants based on the defendants' alleged breaches of their oral promises to pay such sums to the plaintiff's father, now deceased, in exchange for renunciation by the plaintiff's father of his right to be named co-executor of the estate of Sarah Cherofsky, the deceased sister of the plaintiff's father and the aunt of the plaintiff and the defendants, pursuant to Sarah Cherofsky's will.
The Supreme Court granted 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. The plaintiff appeals.
"In considering a motion to dismiss a cause of action 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’ " (Raach v. SLSJET Mgt. Corp., 134 A.D.3d 792, 793, 20 N.Y.S.3d 613, quoting Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153 ; see Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 351, 961 N.Y.S.2d 364, 985 N.E.2d 128 ). Here, even accepting the plaintiff's allegations as true and giving the plaintiff the benefit of every favorable inference, the complaint fails to state a cause of action, as the agreements alleged are void as against public policy (see Oakeshott v. Smith, 104 App.Div. 384, 388–389, 93 N.Y.S. 659, affd. 185 N.Y. 583, 78 N.E. 1108 ; see also Village Taxi Corp. v. Beltre, 91 A.D.3d 92, 99, 933 N.Y.S.2d 694 ; Charap v. Willett, 84 A.D.3d 1003, 1004, 925 N.Y.S.2d 94 ; Rimberg & Assoc., P.C. v. Jamaica Chamber of Commerce, Inc., 40 A.D.3d 1066, 1067, 837 N.Y.S.2d 259 ; Matter of Ungar v. Matarazzo Blumberg & Assoc., 260 A.D.2d 485, 688 N.Y.S.2d 588 ; see generally Lanza v. Carbone, 130 A.D.3d 689, 691, 13 N.Y.S.3d 472 ).
Accordingly, the Supreme Court properly granted 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 (see Rimberg & Assoc., P.C. v. Jamaica Chamber of Commerce, Inc., 40 A.D.3d at 1067, 837 N.Y.S.2d 259 ; Oakeshott v. Smith, 104 App.Div. at 388–389, 93 N.Y.S. 659 ).