Opinion
2013-04-18
MONTEFIORE MEDICAL CENTER, Plaintiff–Respondent, v. TOUCHSTONE HEALTH PARTNERSHIP, INC., Defendant–Appellant.
Moses & Singer LLP, New York (David M. Rabinowitz of counsel), for appellant. Garfunkel Wild, P.C., Great Neck (Michael J. Keane of counsel), for respondent.
Moses & Singer LLP, New York (David M. Rabinowitz of counsel), for appellant. Garfunkel Wild, P.C., Great Neck (Michael J. Keane of counsel), for respondent.
Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered on or about August 2, 2012, which denied defendant's motion to dismiss the second cause of action, unanimously affirmed, without costs.
On this motion to dismiss, the complaint is to be “afforded a liberal construction” and “the facts as alleged in the complaint [are accepted] as true” ( Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). The written agreement, which undisputedly awaited a more complete one, was performed for several years and did not utterly refute the allegations of the complaint ( see e.g. Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 317, 515 N.Y.S.2d 1 [1st Dept. 1987] ).