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Montefiore Medical Center, 20178/12e v. Touchstone Health Partnership

April 18, 2013

MONTEFIORE MEDICAL CENTER, 20178/12E PLAINTIFF-RESPONDENT,
v.
TOUCHSTONE HEALTH PARTNERSHIP, INC., DEFENDANT-APPELLANT.



Montefiore Med. Ctr. v Touchstone Health Partnership, Inc.

Decided on April 18, 2013

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.

Andrias, J.P., Acosta, Freedman, Richter, Gische, JJ.

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered on or about August 2, 2012, which denied defendant's motion to dismiss the second cause of action, unanimously affirmed, without costs.

On this motion to dismiss, the complaint is to be "afforded a liberal construction" and "the facts as alleged in the complaint [are accepted] as true" (Leon v Martinez, 84 NY2d 83, 87 [1994]). The written agreement, which undisputedly awaited a more complete one, was performed for several years and did not utterly refute the allegations of the complaint (see e.g. Four Seasons Hotels v Vinnik, 127 AD2d 310, 317 [1st Dept 1987]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 18, 2013

CLERK

20130418

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