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Safija Cucaj and Eshraj Cucaj v. Paramount Fee

February 9, 2012

SAFIJA CUCAJ AND ESHRAJ CUCAJ,
RESPONDENTS,
v.
PARAMOUNT FEE, L.P.,
APPELLANT.



Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered January 14, 2010.

Cucaj v Paramount Fee, L.P.

Decided on February 9, 2012

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

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: WESTON, J.P., PESCE and RIOS, JJ

The order denied defendant's motion to dismiss the complaint.

ORDERED that the order is affirmed, without costs.

In this action to recover damages for personal injuries, plaintiffs alleged in their complaint that defendant was the owner of the premises located at 1501 Broadway, New York, New York, and that Safija Cucaj sustained personal injuries when an office door located at said premises fell on her. Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7).

In support of the motion, defendant submitted an attorney's affirmation alleging that defendant was an out-of-possession owner of the premises and submitted, among other things, a copy of a 1968 "ground lease," which contained a provision granting the lessor a right of re-entry to maintain and repair the premises. The Civil Court denied defendant's motion to dismiss the complaint.

"On a CPLR 3211 motion to dismiss, the court will 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" (Nonnon v City of New York, 9 NY3d 825, 827 [2007] [internal quotation marks omitted]). Where evidentiary material is submitted on a motion to dismiss, pursuant to CPLR 3211 (a) (7), it may be considered in assessing the viability of a complaint, but unless the defendant demonstrates, without significant dispute, that a material fact alleged in the complaint is not a fact at all, the motion will not be granted (see 1911 Richmond Ave. Assoc., LLC v G.L.G. Capital, LLC, 60 AD3d 1021, 1022 [2009]; Quesada v Global Land, Inc., 35 AD3d 575 [2006]). Even when a defendant submits an affidavit in support of a CPLR 3211 (a) (7) motion to dismiss, the motion will not be granted unless it is established conclusively that the plaintiff has no cause of action (see Sokol v Leader, 74 AD3d 1180, 1182 [2010]; Alsol Enters., Ltd. v Premier Lincoln-Mercury, Inc., 11 AD3d 493 [2004]).

Under this standard, we are of the opinion that defendant's contention regarding the sufficiency of the complaint is without merit. To the extent that defendant's attorney's affirmation alleges that defendant is an out-of-possession owner, defendant's attorney has not established that he has personal knowledge of the facts, and the "ground lease" submitted in support of the motion does not conclusively establish that defendant cannot be held liable to plaintiffs (see 1911 Richmond Ave. Assoc., LLC, 60 AD3d at 1022; Alsol Enters., Ltd., 11 AD3d at 494).

Accordingly, the order is affirmed.

Pesce and Rios, JJ., concur.

Weston, J.P., dissents in a separate memorandum. SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM 2nd, ...


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