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Hauff v. Listemann

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


March 31, 2009

JOHN K. HAUFF, RESPONDENT,
v.
ELAINE LISTEMANN, ET AL., APPELLANTS.

In an action, inter alia, to impose a constructive trust on real property, the defendants appeal from an order of the Supreme Court, Dutchess County (Dolan, J.), dated July 14, 2008, which denied that branch of their motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

WILLIAM F. MASTRO, J.P., JOSEPH COVELLO, RANDALL T. ENG and JOHN M. LEVENTHAL, JJ.

(Index No. 2002/08)

DECISION & ORDER

ORDERED that the order is affirmed, without costs or disbursements.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88). The court's function on such a motion is only to determine whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d at 87-88).

Applying these principles, the Supreme Court correctly denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.

MASTRO, J.P., COVELLO, ENG and LEVENTHAL, JJ., concur.

20090331

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