Bekas v Valiotis

Bekas v Valiotis 2011 NY Slip Op 09077 Decided on December 13, 2011 Appellate Division, Second Department 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.

Decided on December 13, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, A.P.J.
CHERYL E. CHAMBERS
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.
2010-10252
(Index No. 9318/10)

[*1]Demetrios Bekas, appellant,

v

Efstathios Valiotis, et al., respondents.




Mavromihalis Paradalis & Nohavicka, LLP, Astoria, N.Y. (Joseph
D. Nohavicka of counsel; Socrates Xanthopoulos on the brief), for
appellant.
Renee Digrugilliers, Long Island City, N.Y., for respondents.


DECISION & ORDER

In an action, inter alia, to recover damages for fraudulent inducement, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Grays, J.), dated September 22, 2010, as granted those branches of the defendants' motion which were to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendants' motion which were to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7) are denied.

The Supreme Court erred in granting that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1). The documentary evidence submitted by the defendants did not utterly refute the plaintiff's allegations, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see also Fontanetta v John Doe 1, 73 AD3d 78, 86; Morgenthow & Latham v Bank of New York Company, Inc., 305 AD2d 74; Berger v Temple Beth-El of Great Neck, 303 AD2d 346).

Similarly, the Supreme Court erred in granting that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7), as the plaintiff adequately pleaded a cause of action (see Steve Elliot, LLC v Teplitsky, 59 AD3d 523).

The parties' remaining contentions are without merit.
MASTRO, A.P.J., CHAMBERS, AUSTIN and MILLER, JJ., concur.

ENTER: [*2]

Aprilanne Agostino

Clerk of the Court