Opinion
2005-1075 KC.
Decided July 12, 2006.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered on May 25, 2005. The order granted defendants' motion to dismiss the action.
Order modified by striking the provision dismissing the first cause of action and by providing that the branch of defendants' motion seeking dismissal of said cause of action is denied; as so modified, affirmed without costs.
PRESENT: WESTON PATTERSON, J.P., GOLIA and BELEN, JJ.
As his first cause of action, plaintiff alleged that the defendants failed to remit money gained from the sale of "lien property," and as a second cause of action, plaintiff alleged that defendants defrauded him of a judgment in the sum of $21,800. Defendants moved to dismiss the first cause of action pursuant to CPLR 3211 (a) (1) and (7), and the second cause of action, sounding in fraud, pursuant to, inter alia, CPLR 3106 (b).
On a motion to dismiss pursuant to CPLR 3211 (a) (1), a defendant must show that the documentary evidence upon which the motion is based resolves all factual issues as a matter of law and definitively disposes of plaintiff's claim ( see Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). In the instant case, the documentary evidence relied upon by defendants does not conclusively establish a defense as a matter of law which disposes of plaintiff's claim.
It is well settled that a complaint is to be liberally construed on a motion to dismiss for failure to state a cause of action (CPLR 3211 [a] [7]). A court must determine whether plaintiff has a cognizable cause of action and not whether the action has been properly pleaded ( see Leon v. Martinez, 84 NY2d 83, 88; Rovello v. Orofino Realty Co., 40 NY2d 633, 636; Elmore v. City of New York, 15 AD3d 334, 335). The allegations of the complaint must be accepted as true and plaintiff is to be afforded all favorable inferences drawn therefrom ( see Leon, 84 NY2d at 87-88). Under this standard, plaintiff's first cause of action appears to be in the nature of a turnover proceeding (CPLR 5225 [b]). Therefore, this cause of action should not have been dismissed.
However, with respect to plaintiff's second cause of action, plaintiff's complaint failed to plead fraud with sufficient specificity ( see CPLR 3106 [b]; Cohen v. Houseconnect Realty Corp., 289 AD2d 277). Accordingly, the branch of the motion seeking dismissal thereof was properly granted by the court below.
Weston Patterson, J.P., Golia and Belen, JJ., concur.