SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
April 4, 2012
PHANOMY P. PETER, APPELLANT, --
IMHOFF AND ASSOCIATES, RESPONDENT.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered April 20, 2010.
Peter v Imhoff & Assoc.
Appellate Term, Second Department
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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on April 4, 2012
PRESENT: PESCE, P.J., WESTON and RIOS, JJ
The order granted defendant's motion, in effect, to dismiss the complaint for failure to state a cause of action.
ORDERED that the order is affirmed, without costs.
Plaintiff commenced this action to recover $25,000, plus interest from July 13, 2006, for defendant's alleged breach of a contract to perform legal services, and for emotional distress resulting from the alleged breach of contract. By order of the Civil Court entered April 15, 2010, defendant's motion, in effect, to dismiss the complaint for failure to state a cause of action was granted.
On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the complaint is afforded a liberal construction (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 ). The facts alleged in the complaint are presumed to be true, and it is the role of the court to accord the plaintiff "the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 ). However, dismissal is warranted where documentary evidence definitively establishes a defense to the asserted claims as a matter of law (see Arnav Indus. Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 ; Berardino v Ochlan, 2 AD3d 556 ; Ercole v McGay, 13 Misc 3d 144[A], 2006 NY Slip Op 52321[U] [App Term, 9th & 10th Jud Dists 2006]). Upon a review of the record, we find that the Civil Court's dismissal of the complaint, based upon documentary evidence which established that defendant had performed the contracted-for services, was proper. Plaintiff's remaining contentions lack merit.
Accordingly, the order is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur. Decision
Date: April 04, 2012
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