Long v Allen AME Transp. Corp.

Long v Allen AME Transp. Corp. 2007 NY Slip Op 06958 [43 AD3d 1114] September 25, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 7, 2007

Matthew J. Long, Respondent,
v
Allen AME Transportation Corp. et al., Defendants, and Academy Bus Tours of New York, Inc., Appellant.

—[*1] Conway, Farrell, Curtin & Kelly, P.C., New York, N.Y. (Jonathan T. Uejio of counsel), for appellant.

Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Brian J. Shoot and Wendell Y. Tong of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant Academy Bus Tours of New York, Inc., appeals from an order of the Supreme Court, Queens County (Dorsa, J.), dated September 6, 2006, which denied its motion to dismiss the complaint, in effect, pursuant to CPLR 3211 (a) (1).

Ordered that the order is affirmed, with costs.

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]; Kalmon Dolgin Affiliates of Long Is. v Robert Plan Corp., 248 AD2d 594 [1998]). As the Supreme Court correctly concluded, the complaint contains sufficient allegations to state a cognizable cause of action against the appellant, which is not definitively refuted by documentary evidence. Crane, J.P., Goldstein, Skelos and Carni, JJ., concur.