This case is not published in a printed volume and its disposition appears in a table in the reporter.
TO: WHITE, CIRRITO NALLY, LLP Attorneys for Petitioner BY: JAMES P. NALLY, ESQ
MFY LEGAL SERVICES, INC.BY: LYCETTE NELSON Attorney for Respondent
Sabrina B. Kraus, J.
This special proceeding was commenced by SURF MANOR HOME FOR ADULTS, ("Petitioner") seeking to recover possession of Room 223 at 2316 Surf Avenue, Brooklyn, New York, 11224 ("Subject Premises") based on allegations that STUART EDENBAUM, the occupant, ("Respondent") has behaved in a manner which poses imminent risk of serious harm to himself or others, and that his behavior impairs the well being care or safety of other residents or substantially interferes with the orderly operation of the facility.
The proceeding was originally returnable on November 13, 2007.On said date MFY Legal Services filed a Notice of Appearance on behalf of Respondent, and the proceeding was adjourned to December 12, 2007 for motion practice, pursuant to a stipulation between the parties.
On December 12, the proceeding was dismissed based on the Petitioner's failure to appear, and the Respondent's motion for dismissal was withdrawn without prejudice. However, the dismissal was vacated and the motion restored by stipulation between the parties on December 17, 2007.
Respondent moves for dismissal of this proceeding pursuant to CPLR 3211(a)(7). Respondent claims that the pleadings even when viewed in a light most favorable to Petitioner fail to state a cause of action for termination of an admission agreement under Social Services Law 461-(g). Preliminarily, the Court's role on a motion to dismiss for failure to state a cause of action, pursuant to CPLR 3211(a)(7) is limited to determining whether a cause of action is stated within the four corners of the pleadings. Franklin v. DaimlerChrysler Corp., 292 A.D.2d 118 . In opposing such a motion, a party is under no obligation to demonstrate that evidence exists to support the allegations in the pleadings Stuart Realty v. Rye Country Store, Inc., 296 A.D.2d 455 . The pleadings must be construed in a light most favorable to the Petitioner, and all factual allegations must be accepted as true. The only issue for the Court to determine on such a motion is whether the factual allegations "manifest a cause of action cognizable at law" Gruen v. County of Suffolk, 187 A.D.2d 560 ; Weiner v. Lenox Hill Hospital, 193 A.D.2d 380  .
RPAPL 713(a) provides for the maintenance of a special proceeding for termination of an admission agreement ...