Opinion
2011-10-4
Anthony VITALE, et al., appellants,v.Edmund ROWLAND, Jr., etc., respondent, et al., defendant.
Jeffrey Levitt, Massapequa, N.Y., for appellants.
Jeffrey Levitt, Massapequa, N.Y., for appellants.
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal (1) from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered July 13, 2010, which, in effect, granted that branch of the motion of the defendant Edmund Rowland, Jr., which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted
against him individually, and (2) as limited by their brief, from so much of an order of the same court entered December 29, 2010, as, upon reargument, adhered to the original determination.
ORDERED that the appeal from the order entered July 13, 2010, is dismissed, as it was superseded by the order entered December 29, 2010, made upon reargument; and it is further,
ORDERED that the order entered December 29, 2010, is reversed insofar as appealed from, on the law, and, upon reargument, the determination in the order entered July 13, 2010, in effect, granting that branch of the motion of the defendant Edmund Rowland, Jr., which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him individually, is vacated, and that branch of the motion is denied; and it is further,
ORDERED that one bill of costs is awarded to the plaintiffs.
“On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must determine, accepting as true the factual averments of the complaint and according the plaintiff the benefit of all favorable inferences, whether the plaintiff can succeed upon any reasonable view of the facts as stated” ( Schneider v. Hand, 296 A.D.2d 454, 454, 744 N.Y.S.2d 899; see Hill v. Murphy, 63 A.D.3d 680, 681, 881 N.Y.S.2d 133). “Such a motion will fail if, from the four corners of the complaint, factual allegations are discerned which taken together manifest any cause of action cognizable at law” ( Country Pointe at Dix Hills Home Owners Assn., Inc. v. Beechwood Org., 80 A.D.3d 643, 649, 915 N.Y.S.2d 117; see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17). Here, the complaint sets forth a cognizable cause of action sounding in breach of contract against the defendant Edmund Rowland, Jr., individually ( see McCarthy v. Young, 57 A.D.3d 955, 871 N.Y.S.2d 309). Accordingly, at this prediscovery stage, the Supreme Court erred, upon reargument, in adhering to its determination, in effect, granting that branch of the motion of the defendant Edmund Rowland, Jr., which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him individually ( see Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38, 827 N.Y.S.2d 231).