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Cherry v. Duke

Supreme Court, Appellate Division, Second Department, New York.
Dec 2, 2015
134 A.D.3d 662 (N.Y. App. Div. 2015)

Opinion

12-02-2015

Arnold CHERRY, respondent, v. Paul O. DUKE, etc., et al., appellants, et al., defendants.

Leonard W. Stewart, Brooklyn, N.Y., for appellants. Jeffrey Benjamin, Forest Hills, N.Y., for respondent.


Leonard W. Stewart, Brooklyn, N.Y., for appellants.

Jeffrey Benjamin, Forest Hills, N.Y., for respondent.

Opinion

In an action, inter alia, to recover damages for breach of contract and unjust enrichment, the defendants Paul O. Duke and Adib Z. Ghattas, each individually and doing business as Duke & Ghattas Associates, LLC, also known as Ghattas Engineering, PLLC, also known as Ghattas Corporation, appeal from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated August 11, 2014, which denied their pre-answer motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

On a CPLR 3211(a) motion to dismiss, “affidavits may be used freely to preserve inartfully pleaded, but potentially meritorious, claims” (Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635, 389 N.Y.S.2d 314, 357 N.E.2d 970; see AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 5 N.Y.3d 582, 591, 808 N.Y.S.2d 573, 842 N.E.2d 471).

Accepting as true the facts pleaded in the complaint, as amplified by the plaintiff's affidavit, and according the plaintiff “the benefit of every possible favorable inference” (Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511), we find that the Supreme Court properly denied the appellants' pre-answer motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

DILLON, J.P., CHAMBERS, AUSTIN and SGROI, JJ., concur.


Summaries of

Cherry v. Duke

Supreme Court, Appellate Division, Second Department, New York.
Dec 2, 2015
134 A.D.3d 662 (N.Y. App. Div. 2015)
Case details for

Cherry v. Duke

Case Details

Full title:Arnold CHERRY, respondent, v. Paul O. DUKE, etc., et al., appellants, et…

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: Dec 2, 2015

Citations

134 A.D.3d 662 (N.Y. App. Div. 2015)
2015 N.Y. Slip Op. 8799
19 N.Y.S.3d 776

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