Zaichik v HK Investigations Co.

[*1] Zaichik v HK Investigations Co. 2009 NY Slip Op 50601(U) [23 Misc 3d 128(A)] Decided on April 8, 2009 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570017/09.

Grigori Zaichik, Plaintiff-Appellant,

against

HK Investigations Co., Thomas W. Archer, and Stephanie Bowman d/b/a Supreme Judgment Recovery, Defendants, -and- David J. Gold and David J. Gold, P.C., Defendants-Respondents.

Plaintiff appeals from (1) an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), dated August 25, 2008, which granted the motion of defendants David J. Gold and David J. Gold, P.C. to dismiss the complaint as against them; and (2) an order (same court and Judge), dated November 14, 2008, which denied plaintiff's motion for renewal.

Per Curiam.

Order (Joan M. Kenney, J.), dated August 25, 2008, reversed, with $10 costs, motion denied, and complaint reinstated as against defendants David J. Gold and David J. Gold, P.C.

Appeal from order (Joan M. Kenney, J.), dated November 14, 2008, dismissed, without costs, as academic.

On a motion to dismiss a complaint for failure to state a cause of action under CPLR 3211(a)(7), the facts alleged in the complaint must be accepted as true and given every favorable inference, and "affidavits submitted by a [defendant] will almost never warrant dismissal ... unless they establish conclusively that [plaintiff] has no [claim or] cause of action'" (Lawrence v Miller, NY3d , 2008 NY Slip Op 9434, *8, quoting Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]). Applying this review standard, we find that plaintiff's action against the Gold defendants was prematurely dismissed. Plaintiff has not had the opportunity to lay bare admissible proof as to defendants' alleged wrongful conduct, and although defendants' [*2]supporting affidavit may have presented a seemingly strong defense, it did not conclusively establish that plaintiff has no cause of action.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 08, 2009