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Pellarin v. Moon Bay Development Corp.

Appellate Division of the Supreme Court of New York, Second Department
May 2, 2006
29 A.D.3d 553 (N.Y. App. Div. 2006)

Opinion

2004-10787.

May 2, 2006.

In an action, inter alia, to recover damages for breach of contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Underwood, J.), dated November 12, 2004, as denied their motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint and to cancel the notice of pendency.

Frederick P. Stern Associates, P.C., Central Islip, N.Y.

(Frederick P. Stern pro se of counsel), appellant pro se and for appellants Moon Bay Development Corp., John Chiarelli, and Patricia A. Stern.

Thomas F. Liotti, Garden City, N.Y., for respondents.

Before: Florio, J.P., Santucci, Goldstein and Rivera, JJ., concur.


Ordered that the order is affirmed insofar as appealed from, with costs.

In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court should "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" ( Leon v. Martinez, 84 NY2d 83, 87-88).

Applying these principles to the instant case, the Supreme Court properly denied the defendants' motion, inter alia, to dismiss the complaint ( see Jackal Holdings, LLC v. JSS Holding Corp., 23 AD3d 435; cf. Fast Track Funding Corp. v. Perrone, 19 AD3d 362, 363). The plaintiffs sufficiently stated a cause of action against the defendant John Chiarelli in his individual capacity to pierce the corporate veil ( see McCoy Assoc. Realty Corp. v. D.J.F. Props., 194 AD2d 651; People ex rel. Washburn v. Hall Co., 174 AD2d 562), and against the defendants Fredrick P. Stern Associates, P.C., Fredrick P. Stern, and Patricia A. Stern alleging misrepresentation and breach of their fiduciary duty ( see Takayama v. Schaefer, 240 AD2d 21, 25; Grinblat v. Taubenblat, 107 AD2d 735, 736; see also Rovello v. Orofino Realty Co., 40 NY2d 633, 635). Contrary to the defendants' contention, the instant action was commenced within the 45-day period of limitations set forth in the subject contract because the plaintiffs provided notice of claim by a letter dated July 8, 2004 and commenced their action on July 12, 2004 ( cf. Krohn v. Felix Indus., 226 AD2d 506).


Summaries of

Pellarin v. Moon Bay Development Corp.

Appellate Division of the Supreme Court of New York, Second Department
May 2, 2006
29 A.D.3d 553 (N.Y. App. Div. 2006)
Case details for

Pellarin v. Moon Bay Development Corp.

Case Details

Full title:NILOOFAR PELLARIN et al., Respondents, v. MOON BAY DEVELOPMENT CORP. et…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 2, 2006

Citations

29 A.D.3d 553 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 3563
813 N.Y.S.2d 664

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