Firm of Elias C. Schwartz, PLLC, Great Neck, NY (Jennifer J.
Block and Sarah A. Chussler of counsel), for appellants.
Bern Ripka Shkolnik, LLP (Pollack, Pollack, Isaac &
DeCicco, LLP, New York, NY [Brian J. Isaac], of counsel), for
E. CHAMBERS, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, BETSY
DECISION & ORDER
action to recover damages for personal injuries, the
defendants Metropolitan Furniture & Construction Corp.
and Asher Benshar appeal from so much of an order of the
Supreme Court, Nassau County (K. Murphy, J.), entered October
3, 2014, as denied those branches of their motion which were
pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint
insofar as asserted against them, or, in the alternative, to
dismiss the complaint insofar as asserted against the
defendant Asher Benshar, and granted the plaintiff's
cross motion for leave to amend the complaint.
that the order is affirmed insofar as appealed from, with
plaintiff commenced this action to recover damages for
injuries allegedly sustained by him in connection with a
construction accident that occurred in Great Neck. The
complaint alleged that the accident occurred at 50 North
Road. The defendants Metropolitan Furniture &
Construction Corp. and Asher Benshar (hereinafter
individually Metropolitan and Benshar, and together the
defendants) moved, inter alia, pursuant to CPLR 3211(a)(1)
and (7) to dismiss the complaint insofar as asserted against
them. They contended that they never performed any work at 50
North Road in Great Neck. They alternatively moved for the
same relief with respect to Benshar, contending that he acted
solely in his corporate capacity as an executive of
Metropolitan. In support of their motion, the defendants
submitted, among other things, Benshar's affidavit, a
printout from the New York State Department of State,
Division of Corporations, which lists Benshar as the chief
executive officer of Metropolitan, and the purported contract
between Metropolitan and the nonparties on whose premises
Metropolitan performed work at 48 North Road. The plaintiff
cross-moved for leave to amend the complaint to change the
alleged location of the accident from 50 North Road to 48
North Road, and opposed the defendants' motion. The
Supreme Court, inter alia, granted the plaintiff's cross
motion to amend the complaint, and denied the subject
branches of the defendants' motion. The defendants
Supreme Court providently exercised its discretion in
granting the plaintiff's cross motion for leave to amend
the complaint, as his proposed amendments were neither
palpably insufficient nor patently devoid of merit, and did
not prejudice or surprise any defendant (see CPLR 3025[b];
Cortes v Jing Jeng Hang, 143 A.D.3d 854).
the amended complaint alleges that the accident location was
48 North Road, where Metropolitan admittedly performed work
as the general contractor, that branch of the defendants'
motion which was pursuant to CPLR 3211(a)(1) and (7) to
dismiss the complaint insofar as asserted against them on the
ground that they did not perform work at the site of the
accident was properly denied.
Supreme Court also properly denied the alternative branch of
the defendants' motion which was pursuant to CPLR
3211(a)(1) and (7) to dismiss the complaint insofar as
asserted against Benshar. "A motion to dismiss a
complaint based upon documentary evidence may be
appropriately granted only where the documentary evidence
utterly refutes plaintiff's factual allegations,
conclusively establishing a defense as a matter of law"
(Anderson v Armentano, 139 A.D.3d 769, 770 [internal
quotation marks omitted]; see Goshen v Mutual Life Ins.
Co. of N.Y., 98 N.Y.2d 314, 326; Stein v Garfield
Regency Condominium, 65 A.D.3d 1126, 1128). "To
qualify as documentary evidence, the evidence must be
unambiguous and of undisputed authenticity'"
(Anderson v Armentano, 139 A.D.3d at 770-771,
quoting Fontanetta v John Doe 1, 73 A.D.3d 78, 86).
"Judicial records, as well as documents reflecting
out-of-court transactions such as mortgages, deeds,
contracts, and any other paper, the contents of which are
essentially undeniable, " qualify as documentary
evidence in proper cases; however, affidavits and letters are
not considered documentary evidence (Anderson v
Armentano, 139 A.D.3d at 771 [internal quotation marks
omitted]; see Fontanetta v John Doe 1, 73 A.D.3d at
85). While a court is permitted to consider evidentiary
material submitted by a defendant in support of a motion to
dismiss pursuant to CPLR 3211(a)(7), such evidence may only
be considered to determine whether the plaintiff "has a
cause of action, not whether he has stated one" (see
Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275; see
also Dolphin Holdings, Ltd. v Gander & White Shipping,
Inc., 122 A.D.3d 901, 902; Sokol v Leader, 74
A.D.3d 1180, 1181). "[A]ffidavits submitted by a
defendant will almost never warrant dismissal under CPLR 3211
unless they establish conclusively that [the plaintiff] has
no cause of action" (Dolphin Holdings, Ltd. v Gander
& White Shipping, Inc., 122 A.D.3d at 902).
officers may not be held personally liable on contracts for
their corporation, provided they did not purport to bind
themselves individually under such contracts" (Lido
Beach Towers v Denis A. Miller Ins. Agency, Inc., 128
A.D.3d 1025, 1026; see Stern v H. DiMarzo, Inc., 77
A.D.3d 730). Corporate officers "may be held personally
liable for torts committed in the performance of their
corporate duties" (Lido Beach Towers, v Denis A.
Miller Ins. Agency, Inc., 128 A.D.3d at 1026).
Benshar's affidavit is not documentary evidence pursuant
to CPLR 3211(a)(1), and the affidavit did not conclusively
establish that a fact alleged in the complaint was
undisputedly not a fact at all (see Bokhour v GTI Retail
Holdings, Inc.,94 A.D.3d 682, 683; see also Dolphin
Holdings, Ltd. v Gander & White Shipping, Inc., 122
A.D.3d at 902). The defendants' other evidentiary
submissions were insufficient to utterly refute the
plaintiff's factual allegations. As the Supreme Court
properly determined, the signatures on the copy of the
contract were barely legible, and, therefore, failed to
conclusively establish that Benshar did not purport to bind
himself personally under the contract. Moreover,
Benshar's evidentiary submissions did not utterly refute
the plaintiff's allegations of ...